> 


11111 


V' 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


THE 

CALIFORNIA 
PUBLIC  UTILITIES  ACT 

WITH 

CONSTITUTIONAL  PEOVISIONS  OF 
VARIOUS  STATES 

A  SHORT  HISTORY  OF  SUCH  ACTS  AND  A  DISCUSSION 
OF  CONSTITUTIONALITY 

WITH 

ANNOTATIONS 


BY 

E.  W.  FREEMAN 

Of  the  Los  Angeles  Bar 


SAN  FRANCISCO 

BANCROFT-WHITNEY  COMPANY 
1912 


Fillip 

Copyright,    1912 

BY 

BANCKOFT-WHITNEY  COMPANY 


San  Francisco 

The  Filmer  Brothers  Electrotype  Company 

Typographers  and  Stereotypers 


TO  THE  MEMORY 

of  the 

Late    JUDGE    HORACE    C.    EOLFE 

of  the 
San  Bernardino  Bar. 

This  book  is  inscribed  to  him  not  only  as  a  tribute  to  his 
high  professional  character  and  citizenship,  but  as  an  expres- 
sion of  respect  and  admiration  by  one  who  enjoyed  the  good 
fortune  of  once  being  associated  with  him  in  the  practice  of 

law. 

(iii) 


PREFACE. 


In  publishing  this  book,  the  central  thought  has  been  to 
make  it  a  practical  book,  not  only  for  the  practicing  attorney, 
but  for  all  others  who  may  be  interested  in  the  management 
and  control  of  Public  Utilities  within  the  State  of  California. 

For  the  purpose  of  making  it  more  comprehensive,  consti- 
tutional provisions  of  various  states  have  been  printed  herein, 
and  authorities  cited  which  touch  upon  various  provisions  of 
the  act. 

In  annotating,  it  was  deemed  advisable  to  cite  only  such  de- 
cisions as  would  elucidate  or  exemplify  the  act  under  con- 
sideration. 

If  these  objects  have  been  accomplished,  this  book  will  have 
served  its  purpose. 

Los  Angeles,  California,  April,  1912. 

E.  W.  FREEMAN, 
(v) 


729690 


Digitized  by  the  Internet  Archive 

in  2008  with  funding  from 

Microsoft  Corporation 


http://www.archive.org/details/californiapublicOOfree 


CONTENTS. 


CHAPTER  I. 

INTRODUCTORY. 

Page 

§     1.     California  Public  Utilities  Act 1 

§     2.     Illinois  Railroad  and  Warehouse  Commission  Act 2 

§     3.     The  Interstate  Commerce  Commission  Act 3 

§     4.     Similar  Governmental  Policy  in  Other  Countries 4 

CHAPTER  II. 

CONSTITUTIONAL  PROVISIONS. 

§     5.     Introductory 6 

§     6.     Alabama    Constitution — (a)     Distribution     of    Powers    of 

Government 7 

§     7.     (b)  Corporation  Control — Railroads  and  Canals 7 

§     8.     California    Constitution — (a)    Distribution    of    Powers    of 

Government 9 

§     9.     (b)   Corporation   Control 9 

§  10. (c)  Railroad  Commission 16 

§  11.     Georgia  Constitution — (a)   Distribution  of  Powers  of  Gov- 
ernment    21 

§   12.     (b)    Corporation   Control 21 

§  13.     Illinois  Constitution — (a)    Distribution  of  Powers  of  Gov- 
ernment    22 

§  14.     (b)   Corporation  Control 22 

§   15.     Iowa  Constitution — (a)   Distribution  of  Powers  of  Govern- 
ment    22 

§  16.     (b)    Corporation  Control 22 

§  17.     Kansas  Constitution — (a)   Distribution  of  Powers  of  Gov- 
ernment    23 

§  18.     (b)    Corporation   Control 23 

§  19.     Louisiana    Constitution — (a)    Distribution    of    Powers    of 

Government 23 

§  20.     (b)    Corporation  Control 23 

§  21.     (c)    Railroad   Commission 24 

§  22.     Minnesota    Constitution — (a)    Distribution    of    Powers    of 

Government 29 

§  23.     (b)    Corporation   Control 29 

§  24.     Mississippi    Constitution — (a)    Distribution    of   Powers    of 

Government 29 

(vii) 


yiii  CONTENTS. 

Page 

§  25.     (b)   Corporation  Control 30 

§  26.     New   York    Constitution — (a)    Distribution    of   Powers    of 

Government 31 

§  27.     (b)   Corporation  Control 31 

§  28.     North   Carolina   Constitution — (a)   Distribution  of  Powers 

of  Government 31 

§  29.     (b)    Corporation  Control 31 

§  30.     Oklahoma    Constitution — (a)    Distribution    of    Powers    of 

Government 31 

§  31.     (b)    Corporation   Control — Railroad    and   Public    Ser- 
vice Corporations 32 

§  32.     (c)  Corporation  Commission 33 

§  33.     Oregon  Constitution — (a)   Distribution  of  Powers  of  Gov- 
ernment    49 

§  34.     (b)   Corporation  Control 50 

§  35.     Texas   Constitution — (a)    Distribution   of  Powers   of   Gov- 
ernment    50 

§  36.     (b)  Corporation  Control — (1)  Railroads 50 

§  37. (2)  Private  Corporations 52 

§  38.     Washington   Constitution — (a)    Distribution   of  Powers   of 

Government 53 

§  39.     (b)    Corporation    Control 54 

§  40.     Wisconsin    Constitution — (a)    Distribution    of    Powers    of 

Government 56 

§  41.     (b)   Corporation  Control 56 


CHAPTER  III. 

CONSTITUTIONALITY   OF   ACT. 

§  42.  Introductory 57 

§  43.  The  California  Public  Utilities  Act 58 

§  44.  Functions  and  Powers  of  the  Commission 60 

§  45.  Legislative   Powers 63 

§  46.  Charter  Rights  of  Corporations 68 

§  47.  Delegation  of  Power  by  Legislation — Generally 69 

§  48.  Want  of  Constitutional  Provision 70 

§  49.  Authority  to  Delegate  as  to  Acts  not  Legislative.  ...  71 

§  50.  Delegation  as  to  Details  and  Enforcement 72 

§  51.  Discretionary  Powers  cannot  be  Delegated 76 

§  52.  Quasi- judicial    Tribunal 76 

§  53.  Commission  Acts — Alabama 77 

§  54.  Illinois 77 

§  55.  Iowa 78 

§  56. Kansas 80 

§  57.  Minnesota 80 

§  58.  Mississippi 81 


CONTENTS.  IX 

Pa?e 

§  59.     North  Carolina 82 

§  60.     Oklahoma 83 

§61.     Oregon 84 

§62.     Texas 87 

§63.     Wisconsin 88 

§   64.     Distribution   of  Powers  of  Government 89 

§  65.     Burdening  Interstate  Commerce 94 

§  66.     Foreign     Corporation 95 

§67.     Railroads 96 

§  6S.     Subjects  of  Interstate  Commerce  Regulation 98 

§  69.     Canvassers  and  Solicitors 101 

§  70.     Carriage   and   Expressage 101 

§  71.     Intoxicating    Liquors 101 

§  72.     Natural  Gas 1 03 

§  73.     Original  Packages 103 

§  74.     Pipe-lines 103 

§  75.     Sale  by  Sample 103 

§   76.     Hawkers  and  Peddlers  and  "Itinerant  Venders" 104 

§   77.     Telegraph  Companies 105 

§   78.     Waters 105 

§  79.     Loss  of  Character  of  Interstate  Commerce 106 

§  80.     Original  Packages 107 

§  81.     Quarantine  Regulation 108 


CHAPTER  IV. 

TITLES  OF  ACT. 

§  82.     The  Long  Title 109 

§  83.     The   Short   Title 110 

CHAPTER  V. 

DEFINITIONS. 

§     84.     "Commission" 112 

§     85.     "Commissioner" 112 

§     86.     "Corporations" 113 

§     87.     "Person" 113 

§     88.     "Transportation   of  Persons" 114 

§     89.     "Transportation  of  Property" 114 

§     90.     "Street  Railroads" 114 

§     91.     "Street    Railroad    Corporations" 116 

§     92.     "Railroad" 116 

§     93.     "Railroad  Corporation" 117 

§     94.     "Express  Corporation" 118 

§     95.     "Common  Carrier" US 


x  .                   CONTENTS. 

Page 
§     96.     "Pipe-line" 119 

...  110. 

§     97.     "Pipe-line  Corporation" ±±v 

§     98.     "Gas  Plant" 119 

§     99.     "Gas  Corporation" 119 

§  100.     "Electric  Plant" 12° 

§  101.     "Electrical   Corporation" 12° 

§  102.     "Telephone    Line" 12° 

§  103.     "Telephone  Corporation" 121 

§  104.     "Telegraph  Line" • m 

§  105.     "Telegraph   Corporation" 121 

§  106.     "Water    System" 121 

§  107.     "Water    Corporation" 122 

§  108.     "Vessel"    122 

§  109.     "Wharfinger" 12a 

§  110.     "Warehouseman" ■  ••  122 

§  111.     "Public  Utilities" 123 


CHAPTER  VI. 

RAILROAD  COMMISSION— GENERAL  PROVISIONS. 

§  112.     Appointment   of   Commissioners 124 

§  113.     Term  of  Office 125 

§  114.     President  of  Commission — Election  of 125 

§  115.     Vacancies — Filling   of 125 

§  116.     Removal  of  Commissioners — Grounds  for 125 

§  117.     Attorney  to  the  Commission — Appointment  of 125 

§  us.     Duties  of  Attorney  to  Commission 126 

§  119.  Secretary  to  the  Commission — Appointment  and  Term  of 

Office 126 

§  130.     Duties  of  Secretary  to  Commission 126 

§  121.     Assistant  Secretary — Powers  and  Duties  of 126 

§  122.     Additional  Officers  and  Employees 127 

§  123.     Oath  of  Office  of  Commissioners,  Appointees,  etc 127 

§  124.  Qualification     and     Eligibility     of     Commissioners,    Ap- 
pointees  and   Employees , 127 

§  125.     General  Office  of  Commission — In  San  Francisco 128 

§  126.     Open  When 128 

§  127.     Session  of  Commission  at 128 

§  128.     Other  Offices  of  Commission 128 

§  129.     Session  of  Commission,  Public 128 

§  130.     Official  Seal  of  Commission — Judicial  Notice 128 

§  131.     Supplies  and  Equipment 129 

§  132.     Quorum  of  Commission 129 

§  133.     Vacancy  not  to  Impair  Powers 129 

§  134.     Majority  to   Act — One   may   Investigate 129 

8  135.     Salaries — Of    Commissioners 130 


CONTENTS.  XI 

Page 

§  136.     Of  Officers  and  Employees 130 

§  137.     Of  Civil  Executive  Officers 130 

§  138.     Of  Other  Persons  and  Employees 130 

§  139.     Expenses  of  Commission 130 

§  140.     Free  Transportation  of  Commissioners  and  Employees.  .  .  131 

§  141.     Annual   Report   of   Commission 131 


CHAPTER  VII. 

DUTIES  OF  PUBLIC  UTILITIES. 

§  142.     Charges  to  be  Just  and  Reasonable 133 

§  143.     Unjust  Charge  Unlawful 134 

§  144.     Services   and   Facilities 134 

§  145.     Rules   and   Regulations    135 

§  146.     Tariff  Schedule — Filing  and  Public  Inspection  of 135 

§  147.     Joint  Rate  Over   Through   Route 135 

§   148.     Shall   State   What 135 

§   149.     How  Printed — Copies  How  Kept  and  Produced 136 

§  150.     Notice    in — Contents    of — Posting 136 

§  151.     Form  of  to  be  Prescribed  by  Commission 137 

§  152.     Who  to  File  With  Commission 137 

§  153.     Limitation  of  Rates,  Tolls,  Rentals  and  Charges...   137 

§   154.     Power  of  Commission  to  Approve  or  Fix,  etc 138 

§  155.     Power  of  Commission  to  Change  Form  of  Schedule 

of  Rates 138 

§   156.     Changes   in   Schedule — Notice 138 

§  157.     Notice,  How  Given 139 

§  158.     Commission  may  Allow  Change  Without  the  Notice.    139 

§  159.     Increase  of  Rate — Notice  Directed  to  How 139 

§  160.     Joint  Tariff,  etc. — Names  of  Parties  to  be  Set  Out 139 

§   161.     Filing  by  One  Party,  Concurrence  by  Others 139 

§  162.     Schedule  of  Rates,  etc. — Filing  and  Publishing 140 

§  163.     Carriers  Shall  not   Change HO 

§  164.     Rebates  and  Privileges  Prohibited 140 

§  165.     Free  Passes  and  Reductions  Prohibited — Exceptions  141 

§  166.     Free  and  Reduced  Rates  by  Express  Companies....   143 

§  167.     Passes    and    Franks    by    Telegraph    and     Telephone 

Company 143 

§  168.     Prior  Contract  for  Free  or  Reduced  Rate  Passenger 

Transportation    not  Affected 143 

§  109.     Exceptions    as    to    United    States,    etc. — Epidemics, 

Pestilences,  etc 144 

§  170.     Contract  for  Exchange  of  Service 144 

§  171.     Greater   or  Less  Charge  Shall  not  be  Demanded  or 

Collected — Rebating,    etc.,    Prohibited 144 

§  172.     Exceptions  may  be  Established   by   Commission....   145 


xii  CONTENTS. 

Page 

§  173.     Interstate  Traffic— Filing  Schedule  of 145 

§  174.     Preferences    Prohibited 146 

§   175.     Unreasonable   Difference   of  Eates,  etc 146 

§  176.     Power  of  Commission  as  to 146 

§  177.     Profiting  from  Economics,  etc. — Dividends 146 

§  178.     Sliding  Scale   of   Charges — Schedule 146 

§  179.     Profit   Sharing— Scale   of   Charges 147 

§  180.     Commission  may  Revoke  Schedule  and  Fix  Other  Charge.    147 
§  181.     Discrimination  Between   Utilities  Inter  Se  Prohibited...   147 

§  182.     Connecting   Line,   Duty   to   Receive   and   Haul   Cars 

as   Billed 148 

§  183.     Duty    to    Make   Joint    Rates,    and    Power    of    Com- 
mission is  not  Affected 148 

§  184.     Duty    of    Telegraph    and    Telephone    Lines    to    Re- 
ceive  and   Transmit 148 

§  185.     False  Billing,  etc.,  by  Carrier  or  Shipper  Prohibited 149 

§  186.     Less  Rates  by  Means  of  Prohibited 149 

§  187.     False    Claim    for    Damages,    and    Rebates,    etc.,    by 

Means   of  Prohibited 149 

§  188.     Long  and  Short  Hauls  and  Services 150 

§  189.     Change    or    Modification    of    Rates,    etc.,    by    Com- 
mission     150 

§  190.     Telegraph  and  Telephone  Corporations  Governed  by.  151 

§  191.     Change  or  Modification  of  Charges  by  Commission.  .    151 

§  192.     Switch  and  Spur  Connections 151 

§   193.     Duty    to    Construct,    and    to    Receive    and    Deliver 

Freight 152 

§  194.     Foreign   Public   Utilities   Excluded 152 

§  195.     Street  and  Interurban  Railroad — Fares  on 153 

§   196.     Transfers    153 

§  197.     Information    and    Details    to    be    Furnished — Tabulation, 

etc 153 

§  198.     Filling  Out  Blanks — Reason  for  Failure  to  be  Given.    154 

§  199.     Delivering    Copies    of    Maps,    Profiles,    etc. — Inven- 
tory  of   Property 154 

§  200.     To  be  Kept  Private 154 

§  201.     Misdemeanor  to  Divulge 155 

§  202.     Annual  Report  of  Public  Utilities 155 

§  203.     To  be  Made  Under  Oath 155 

§  204.     Compliance  With  Commission's  Orders 155 


CONTENTS.  Xlll 


CHAPTER  VIII. 

POWERS  AND  DUTIES  OF  RAILROAD  COMMISSION. 

Page 

§  205.     Powers   of   Commission    • 1 

§  206.     Charges,  Rates,  etc.,  to  be  Fixed  by  Commission 165 

§  207.     Investigating  and  Fixing  Single   Rates,  etc 176 

§  208.     Joint  Rates  and  Through  Rates  on  Common  Carriers 176 

§  209.     Transportation   in   Originating   Car 1'' 

§  210.     Division   of   Rates,   etc.— Supplemental    Order 177 

§  211.     Powers    of     Commission    to    Establish     Rates    and    Fix 

Division   of * '  ' 

§  212.     Interstate  Rates — Application  to   Commerce   Commission.  178 
§  213.     Service,    Equipment,    Facilities— To     be    Fixed    by    Com- 

mission ±,c> 

§  214.     Rules   and   Regulations,   etc.,   to   be   Prescribed   by   Com- 

•  •  170 
mission i'° 

§  215.     Power    of     Commission     to    Order    Additions,    Changes, 

Improvements 1 '  9 

§  216.     Site  of  New  Structure  may  be  Fixed 180 

§  217.     Making  at  Joint  Cost — Apportionment  of  Cost 181 

§  218.     Fixing  Proportion  of  Cost  by  Commission 182 

§  219.     Power  of  Commission  to  Order  Changes  in  Time  Schedule 

and  Running  Additional  Cars  and  Trains 183 

§  220.     Track   Connections 184 

§  221.     Cities  and  Towns I86 

§  222.     Expense   of   Connections 187 

§  223.     Switch  and  Spur  Connections 187 

§  224.     Any    Corporation   or   Person    Entitled   to    Connect — 

Division  of  Primary  Expense 18 ' 

§  225.     Interchange  Switching  to  Industrial   Track 188 

§  226.     Telephone  and  Telegraph  Line — Physical  Connection 188 

§  227.     Apportionment  of  Expense  and  Division  of  Joint  Rates..   189 

§  228.     Use  of  Joint  Facilities 189 

§  229.     Liability  for  Damages  from  Use ISO 

§  230.     Health  and  Safety— Safety  Devices 190 

§  231.     Grade   Crossings — Prohibition   of  Future 191 

§   232.     Determining   Manner    of — Abolishing    Established....    191 

§  233.     Investigation    of     Accidents — Orders    and     Recommenda- 

tions li'-' 

§  234.     Orders,  etc.,  nor  Report  Filed  Willi,  to  be  Admitted 

in   Evidence 192 

§  235.     Report  to  be  Filed   With   Commission 192 

§  236.     Rules  to  Expedite  Traffic — Power  of  Commission  to  Pro- 

•  j  19° 
vide Lva 

§  237.     Demurrage    Charges 193 


XIV  CONTENTS. 

Page 

§  238.     Express  and  Telegraph  JKules  and  Regulations 193 

§  239.     Power  of  Commission  as  to  Service,  etc.,  of  Public  Util- 
ities  193 

§  240.     Power    of    Commissioners,    etc.,   to   Enter   Premises, 

etc. — Right  to  be  Present  at  Test 194 

§  241.     Consumers  and  Users  may  have  Appliances  Tested.   194 

§  242.     Commission  may  Prescribe  Fees  for  Testing 194 

§  243.     Valuation    of    Property 195 

§  244.     Revaluation,  etc.,  Extension,   etc 195 

§  245.     Uniform    System    of   Accounting — Commission    may    Pre- 
scribe     195 

§  246.     Forms  in  Addition  to  Those  of  Commerce  Commis- 
sion    196 

§  247.     Unlawful  to  Keep  Records  and  Accounts  Otherwise 

Than    as   Prescribed 196 

§  248.     Depreciation   Accounts 197 

§  249.     Rates  of  Depreciation  to  be  Fixed  by  Commission..   197 

§  250.     Public   Utilities   to   Conform   Depreciation   to   Rates 

of  as  Fixed 197 

§  251.     New  Construction — Certificate  from  Commission 197 

§  252.     Certificate  not   Required  When 198 

§  253.     Interference  With  Other  Public  Utilities 198 

§  254.     Franchises   and   Privileges 199 

§  255.     Right    to    Proceed    Under    Former    Franchises    and 

Privileges,  When 199 

§  256.     Invalid  Right  or  Privilege  not  Validated 199 

§  257.     Certified  Copies  of  Articles,  etc.,  to  be  Filed 199 

§  258.     Evidence  of  Franchises,  etc.,  to  be  Filed 200 

§  259.     Power  to  Issue  or  Review  Certificate 200 

§  260.     Franchises,  etc.,  Yet  to  be  Secured — Order  for  and 

Certificate  When  Secured 200 

§  261.     Transfer    of    Property,    Franchises,    etc. — Order    Author- 
izing     201 

§  262.     Sale,   Lease,   etc.,   Without    Order   of   Authorization 

Void 201 

§  263.     Permission    or    Approval   not   to   Validate   Void    or 

Lapsed   Franchises,    etc 201 

§  264.     Construction    to   be   Given   Section 202 

§  265.     Stock    of    Other   Utility — Not    to    be    Purchased    or 

Held  Without  Authority  of  Commission 202 

§  266.     Assignment,  etc.,  of  Stock  Without  Authorization,  Void..   202 

§  267.    Holding   of    Stock,    etc.,    Heretofore    Acquired,    not 

Affected 202 

§  268.     Power  to  Issue  Stock,  Bonds,   etc. — Special  Privileges — 

Control  of 203 

§  269.     Purpose  for  Which  Bond,  etc.,  may  be  Issued 204 


CONTENTS.  XV 

Pa^e 

§  270.     Power  of  Commission  on  Authorizing  Bond3 204 

§  271.     Hearing  to   Determine   Whether  to   Authorize   Bond 

Issue,   etc 205 

§  272.     Commission  to  Fix  and  Determine  Amount  of  Issue.   205 

§  273.     Authorizing  Bond  Issue,  etc.,  Greater  or  Less  Than 

Authorized  Stock 205 

§  274.     Application  of  Proceeds  of  Bond  Issue,  etc.,  to   be 

Made    as   Commission    Directs 206 

§  275.     Notes  may  be  Issued,  Without  Authorization,  When  206 

§  276.  Capitalization  of  Franchises,  etc.,  not  to  be  Au- 
thorized     206 

§  277.     Disposition   of   Proceeds  of  Bond   Issue,   etc.,   to   be 

Accounted    for 207 

§  278.     Issue  of  Bonds,   Stock,  etc.,  Without  Authorization, 

Void — Effect   of  Failure   to   Authorize 207 

§  279.  Penalty  for  Issuing  Bonds,  etc.,  Without  Authoriza- 
tion, and  for  Failure  to  Apply  Proceeds  as  Directed.  .  .   208 

§  280.  Felony  to  Issue  Bonds,  Stock,  etc.,  Without  Au- 
thorization, or  to  Apply  Otherwise  Than  as  Directed..   208 

§  281.     State    not     Obligated    by    Authorization    of     Bond 

Issue,  etc 209 

§  282.     Issue  of  Bonds,  Stock,  etc.,  After  Act  Takes  Effect, 

Without  Prior  Authorization,  Void 210 

§  283.     Power  of  Commission  to  Impose  Conditions 210 


CHAPTER  IX. 

PROCEDURE  BEFORE  RAILROAD  COMMISSION  AND   COURTS. 

§  284.     Rule  for  Hearings — Rules  of  Evidence 214 

§  285.     Informalities   not  to  Prejudice 214 

§  286.     Process — Power  to  Issue 214 

§  287.     Extends  to  All  Parts  of  State— Service  of 215 

§  288.     Compensation   for   Serving 215 

§  289.     Witnesses — Documents   and   Papers 215 

§  290.     Fees  and  Mileage — By  Whom  Paid 215 

§  291.     Subpoenaed  by   Commission — Payment   of  Fees   and 

Mileage 215 

§  292.     May   Demand   Fees   and   Mileage — Exceptions 216 

§  203.     Fees  Demanded  not  Paid — Witness  Need  not  Attend  216 

§  294.     Fees  may  be  Collected  by  Suit. 216 

§  295.     Traveling    on    Free    Transportation    not    to    Receive 

Mileage 216 

§  296.     ■ Court  may  Compel  Attendance  of,  With  Books  and 

Papers 216 

§  297.     RefiKsal    to    Attend,    etc. — Report    to    Court,    Condi- 
tions  of 217 


Xvi  CONTENTS. 

Page 

§  298.     Order   of   Court   That   Witness   Appear — Service    of 

Copy 217 

§  299.     Failure    to    Obey    Court's    Order    to    Appear — Con- 
tempt     218 

§  300.     Failure  to  Appear — Remedy  Provided  Cumulative..   218 

§  301.     Deposition    of   may   be    Taken — Compelling   Attend- 
ance for,   With   Books,   etc 218 

§  302.     No  Person   Shall  be   Excused  from   Testifying,   etc. 

— But  not  to  be  Prosecuted 219 

§  303.     No  Person  Testifying  to  be  Exempt  from  Prosecu- 
tion   for   Perjury 219 

§  304.     Public   Utilities  not   Given   Immunity 220 

§  305.     Paper    Filed    With    Commission,    Certified    Copies    to    be 

Evidence 220 

§  306.     Orders,   etc.,  of  Commission — To  be  in  Writing  and   En- 
tered of  Record 220 

§  307.     May    be    Recorded    by    County    Recorder,    When — 

Impart   Notice 220 

§  308.     Certificate  of  Note,  etc. — Recording 221 

§  309.     Fees  to  be  Charged  and  Collected  by  Commission 221 

§  310.     No  Fee  When  Bond  Issue  for  Refunding,  Discharge, 

etc 222 

§  311.     No  Fee  for  Copies   of  Paper  or  Records,  When,   or 

for  Annual   Report 222 

§  312.     To  be  Paid  into  State  Treasury  Once  a  Week — De- 
tailed  Statements 222 

§  313.     Inspection  of  Books,  Papers  and  Documents 222 

§  314.     Authority    Under    Seal    of     Commission     Reo.uired 

When 223 

§  315.     Written  Record  of  Testimony,  etc.,  to  be  Filed 223 

§  316.     Production  of  Books  and  Records  Kept  Outside  of  State.   223 

§  317.     Complaints 223 

§  318.     To  be  Entered  by  Commission,  When — Signature...   224 

§  319.     Joinder    of    Grounds — Misjoinder   or    Nonjoinder    of 

.  Parties,  Immaterial — Rule  Applies  on  Review 225 

§  320.     No  Dismissal  for  Want  of  Direct  Damage 225 

§  321.     Copy  to  be  Served  on  Corporation,  etc 225 

§  322.     Service  may  be  Made  upon  Whom,  and  How 226 

§  323.     Fixing  Hearing— Ten  Days'  Notice 226 

§  324.     Hearings — Who  may  Introduce  Evidence  at 226 

§  325.     Process  and  Enforcing  Attendance  of  Witnesses.  .  .   227 

§  326.     Order  on,  to  be  Filed — Decision 227 

§  327.     Copy  of  Order  to  be  Served 227 

§  328.     Order  to  be  Operative  in  Twenty  Days — Exceptions  227 

§  329.     Where   Order  cannot  be  Complied  With  in  Twenty 

Days 227 


CONTENTS.  XV11 

Page 

§  330.     Full  and  Complete  Record — Testimony 227 

§  33i,     Action   to  Review  Order — Transcript  on 228 

§  332.     Action  to  Review  Order — Stipulating  Question 228 

§  333.     Public   Utility   may   Complain 22S 

§  334.     Increase   in   Rates 229 

§  335.     Hearing  on   Individual   Rate,   etc. — Not   to   Go   into 

Effect  Until   Ordered 229 

§  33G.     Suspension  not  to  be  Beyond  Twenty  Days — Exten- 
sion  of   Period 229 

§  337.     On  Hearing  Rate  to  be  Fixed  by  Commission 230 

§  338.     Go  into   Effect  in  Thirty   Days  from  Filing,  Unless 

Otherwise    Ordered 230 

§  339.     Commission  may  Change  Orders  and  Decisions 230 

§  340.     Orders   and   Decisions — Conclusion   in   Collateral   Proceed- 
ings     231 

§  341.     Rehearings — Who  may  Apply  for — Granted  When 231 

§  342.     Necessary  to  Action  on  Review 231 

§  343.     Application  to  Set  Forth  Specifically  Grounds — Other 

Grounds   Excluded 231 

§  344.     Made  Ten  Days  or   More   Before  Order  Effective — 

Decision  on 232 

§  345.     Made  Less  Than  Ten  Days  Before  Order  Effective — 

Decision  for  Extension  of  Date 232 

§  346.     Application    Granted    Without    Suspending    Order — 

Affirmance   of   Decision   Implied   When 232 

§  347.     Application  for  not  to   Excuse  Noncompliance 232 

§  348.     Abrogation,  Change  or  Modification  of  Order  on 233 

§  349.     Orders  After  Rehearing — Effect  of  Original  Order..   23:i 

§  350.     Review — Application  for  Writ  of — When  to  be  Made 233 

|  35i.     Writ  of,  Returnable  When — Direction   of 235 

§  352.     Hearing  on  Return  Day — Continuance 236 

§  353.     New  Evidence  not  Allowed — To  be  Heard  upon  the 

Record 236 

§  354.     Extent  of  Review 236 

§  355.     Findings  and  Conclusion  of  Commission  Finally  on.   238 

§  356.     Right  to   Appear  at 240 

§  357.     Judgment  of   Supreme  Court 241 

§  358.     Provisions    of    Code    of    Civil    Procedure    as    to    Writs 

of  Review   Govern 241 

?  359.     Jurisdiction  on 242 

§  360.     Mandamus  to  Commission  on 243 

§  361.     Suspension  of  Commission's  Order — None  Pending  Review.  .   24;S 

§  362.     Stay  by  Supreme  Court,  Notice 243 

§  363.     Stay  Effective  When  Bond  Filed,  Only 244 

§  364.     Stay    Granted — Money   to   be   Paid    into    Court   and 

Impounded — Deposit  at  Interest 244 


xviii  CONTENTS. 

Fage 
§  365.     Stay   Granted— Act  to  be  Kept  Under   Oath,    Condition 

of— Penalty  for  Failure 245 

§  366.     Additional  Securities  may  be  Required 245 

§  367.     Disposition  of  Moneys  on  Final  Decision 246 

§  368.     Moneys  not  Claimed— Advertisement 246 

§  369.     Final  Disposition  of  Moneys  not  Claimed 246 

§  370.     Court  Proceedings — Preferences 247 

§  371.     Physical  Valuation— Hearings  for 247 

§  372.     Thirty  Days'  Notice  in  Writing — Conditions  of 247 

§  373.     Who  Entitled  to  Appear  at  and  Put  in  Evidence 248 

§  374.     Scope   of   Inquiry — Evidence 248 

§  375.     Findings  of  Fact  in  Writing  to  be  Filed 248 

§  376.     Findings  of  Fact  Subject  to  Review 248 

§  377.     Findings  of  Commission  Admissible  as  Evidence...   248 

§  378.     Further   Hearings   from  Time   to  Time 249 

§  379.     Further  Hearing  shall  be  on  Written  Notice 249 

§  380.     Findings    at     Supplemental     Hearings  —  Considered 

With   Original   Finding 249 

§  38i.     Excessive  or  Discriminatory  Charge— Reparation. . .   250 

§  382.     Failure    to    Comply    With    Order    of     Reparation- 
Action  250 

§  383.     Complaints    Concerning    and    Petition    in    Action- 
Limitation  250 

§  384.     Remedy  Provided  is  Cumulative 250 

§  385      Commission    shall    Enforce    Laws — Action    in    Name    of 

People %5l 

|  386.     Attorney  General  and  District  Attorney  to  Aid 251 

§  387.     Public    Utilities    Liable  for    Damages— Who    Entitled  to 

Damages 251 

§  388.     Jurisdiction  of  Action — Who  may  Bring 252 

§  389.     Recovery  by  Individuals,  etc.,  not  to  Affect  Right 

of    State    to    Penalties 252 

§  390.     Effect  of  Act — Right  of  State  to  Penalties,  etc.,  not  Af- 
fected    252 

§  391.     Penalties  Provided  Cumulative 252 

§  392.     Summary  Proceedings — Injunction  to  Prevent  Violation  of 

Order,  etc 253 

§  393.     Attorney    of    Commission    to    Proceed    in    Superior 

Court 254 

§  394.     Court    to    Fix    Hearing — Copy   of    Petition   to    be 

Served 254 

§  395.     Procedure  in  Case  of  Default 254 

§  396.     Joinder  of  Parties — Discretion  of  Court 255 

§  397.     Final  Judgment  on  Hearing 255 

§  398.     Appeal  to  Supreme  Court — How  Taken 255 

§  399.     Penalties  for  Violation  by  Public  Utilities 256 


CONTENTS.  XIX 

Page 

§  400.     Each  Day's  Continuance  a  Separate  Offense 257 

§  401.     Construction — Act  of  Omission  of  Officer,  etc 258 

§  402.     Penalties  for  Violation  by  Officers,  etc. — Misdemeanor.  . .  .   258 
§  403.     Penalties   for     Violations   by     Corporations     Other    Than 

Public   Utilities 259 

§  404.     Penalties  for  Violations  by  Persons  Other  Than  Officers, 

etc 259 

§  405.     Suit  to   Recover  Penalties — Jurisdiction 260 

§  406.     Brought  and  Prosecuted  by  Whom 260 

§  407.     What  may  be  Recovered — Procedure  and  Evidence..   260 

§  408.     Disposition  of  Penalties  and  Costs  Recovered 260 

§  409.     Compromise  or  Discontinuance  of  Action 261 

§  410.     Contempt    Proceedings — Punishment 261 

§  411.     Remedy  Cumulative  and  not  a  Bar  to  Other  Reme- 
dies Prescribed 261 


CHAPTER  X. 

CONSTRUCTION  —  SAVING      CLAUSE  —  APPROPRIATION- 
REPEAL. 

§  412.     Effect   of   Act   on   Existing   Powers   of   Any   City,   etc. — 

Vote   to   be   Taken 262 

§  413.     Election  to  Continue  Power — Subsequent  Surrender 

of  Powers,  How 262 

§  414.     Effect  of  Act  on  Pending  Actions  and  Proceedings 263 

§  415.     Ratification    of    Act    and    Proceedings    of    Commis- 
sion     263 

§  416.     Cause  of    Action  shall  not    Abate — Action  may  be 

Brought  Under  This  Act 264 

§  417.     Orders,  Decisions,  etc.,  of  Commission — Continued  in 

Force   264 

§  418.     Act  to  be  Construed  Continuance  of  Former  Acts  of 

1911    264 

§  419.     Constitutionality — Provisions  as  to 264 

§  420.     Declaration  of  Intent  of  Legislature 265 

§  421.     Interstate    Commerce 265 

§  422.     Appropriation 266 

§  423.     Repeals 266 

§  424.     Time  of  Going  into  Effect 266 


CHAPTER  XI. 

MUNICIPAL  RETENTION  OR  SURRENDER  OF  POWERS....  267 


XX  CONTENTS. 


CHAPTER  XII. 

RULES  OF  PRACTICE   AND   PROCEDURE,   ETC. 

Page 
Rule  I.     Definitions 281 

1.  Public    Utility 281 

2.  Commission 282 

3.  Formal   Proceeding 282 

4.  Complaint 282 

5.  Application 282 

6.  Financial  Condition 282 

Rule        II.     Sessions  of  Commission 283 

Rule      III.     Secretary  to   Furnish   Information 283 

Rule      IV.     Formal  Proceedings — General  Matters  Applicable  to 

All 284 

1.  Address  of  Commission 284 

2.  Case    Numbers 284  ' 

3.  Form  and  Size  of  Papers  Filed 284 

4.  Amendments 284 

5.  Subpoenas 2S4 

6.  Service  of  Papers 284 

7.  Filing  or  Entry  and  Service  of  Orders 285 

8.  Intervention 285 

Rule        V.     Complaints — Contents  and  Proceedings  Up  to  Hear- 
ing    285 

1.  Who    may    Complain 285 

2.  Contents   of   Complaint 286 

3.  Signature    of    Complaint 2S6 

4.  Copies  to  Accompany  Complaint 287 

5.  Procedure   of    Commission    on    Filing  of    Com- 

plaint     287 

6.  Satisfaction   of   Complaint 288 

7.  Answer    to    Complaint 2S8 

Rule      VL     Hearings   and   Rehearings — In   All   Formal   Proceed- 
ings  289 

1.  When  Hearings  will  be  Given 289 

2.  Notice  of  Place  of  Hearing 289 

3.  Stipulation  as  to  Facts 2S9 

4.  Procedure  at  Hearings 290 

5.  Adjournments 290 

6.  Briefs 290 

7.  Investigations  on  Commission's  Own  Motion. .  .  290 

8.  Rehearings 291 

Rule    VII.     Switch  Connections  and  Spurs — Complaints  for....  291 

Rule  VIIL     Value  of  Property  of  Public  Utilities 292 


CONTENTS. 


XXI 


Page 
Rule  IX.     Applications — General  Matters  Applicable  to  All.  .   292 

1.  Contents    of    Application 292 

2.  Documents  Filed   With   Application 

3.  Procedure   of   Commission   on    Filing   of   Peti- 

tion     293 

Rule  X.     Railroad  Crossings — Applications  for  Construction, 

Alteration  or  Abolition  of 293 

Rule  XI.  Safety  Devices  at  Railroad  Crossings — Applica- 
tions  for 2f>4 

Rule        XII.     New     Construction     or      Extensions — Applications 

for 295 

Rule  XIII.  Franchises  and  Permits — Applications  for  Permis- 
sion  to    Exercise 298 

Rule  XIV.  Sale,  Lease,  Assignment,  Mortgage  or  Other  Dis- 
position of  Property — Application  for 297 

Rule  XV.  Acquisition  of  Part  or  All  of  Capital  Stock  of  An- 
other   Utility 298 

Rule  XVI.  Stocks,  Bonds,  Notes  and  Other  Evidences  of  In- 
debtedness— Applications  for  Order  Authorizing 
Issue   of 299 

Rule     XVII.     Increases  in  Charges — Applications  for  Permission 

to    Make 302 

Rule  XVIII.     Long    and    Short    Haul    Rule:   Thirty    Day    Notice 

Rule — Applications  for  Relief  from 303 

Rule       XIX.     Excessive  or  Discriminatory  Charges — Applications 

for  Permission  to  Refund 304 

Rule  XX.  Extensions  of  Time  to  File  Required  Reports, 
Statements  or  Data  or  to  Comply  With  Commis- 
sion's  Orders — Applications   for 305 

Rule      XXI.     Other  Applications. 

Rule     XXII.     Deviations  from  Rules — Authorizations  for 30(5 

Rule  XXIII.     Amendment  of  Rules 30(> 

Rule  XXIV.     Forms  Prescribed  for  Use 30(i 

Prescribed    Forms 30S-312 

1.  Formal    Complaint 307 

2.  Formal  Application 308 

3.  Order  to  iSutisi'y  or  Answer  a  Complaint 309 

4.  Answer 310 

5.  Notice   of   Hearing   on   Complaint 311 

6.  Published  Notice  of  Hearing  on  Application 312 


TABLE  OF  CASES  CITED. 


Page 

Abeel  v.  Clark,  84  Cal.  226,  24  Pac.  3S3 110 

Adams  v.  Beloit,  105  Wis.  363,  81  N.  W.  896,  47  L.  R.  A.  441 74 

Adams  v.  New  York,  192  U.  S.  585,  24  Sup.  Ct.  372,  48  L.  ed.  575. .   170 

Aetna  Ins.  Co.  v.  Commonwealth,  106  Ky.  879,  51  S.  W.  627 99 

American  Steel  &  Wire  Co.  v.  Speed,  192  U.  S.  500,  24  Sup.  Ct.  365, 

48  L.   ed.   538 108 

Anderson  v.  Grand  Valley  Irr.  Dist.,  35  Colo.  525,  85  Pac.  313 110 

Anderson  v.  Manchester  Fire  Assur.  Co.,  59  Minn.  182,  60  X.  W. 

1095,  63  N.  W.  241,  50  Am.  St.  Eep.  400,  28  L.  R.  A.  6S9 69 

Atchison,  T.  &  S.  F.  E.  Co.  v.  State,  27  Okl.  820,  115  Pac.  1101 242 

Atchison,  T.  &  S.  F.  R.  Co.  v.  State,  28  Okl.  805,  115  Pac.  873 60 

Atlantic  Coast  Line  R.  Co.  v.  Florida,  203  U.  S.  256,  27  Sup.  Ct. 

108,  51  L.  ed.   174 66,   72,  83 

Atlantic  Coast  Line  R.  Co.  v.  Mazursky,  216  U.  S.  122,  30  Sup.  Ct. 

378,   54   L.    ed.    411 97 

Atlantic  Coast  Line  Co.  v.  North  Carolina  Corporate  Commis- 
sion, 204  U.  S.  1,  27  Sup.  Ct.  585,  51  L.  ed.  933 

69,    72,    83,    163,    166,    184,  185 

Atlantic  Coast  L.  R.  Co.  v.  Riverside  Mills,  219  U.  S.  1S6,  31  Sup. 

Ct.  164,  55  L.  ed.  167 64,  70,  222 

B.  &  O.  R,  Co.  v.  Maryland,  88  U.  S.  (20  Wall.)  456,  22  L.  ed.  678.  66 
Baltimore  &  O.  R.  Co.  v.  Interstate  Commerce  Commission,  221  U. 

S.  612,  31  Sup.  Ct.  621,  55  L.  ed.  878 64 

Baltimore  &  O.  R.  Co.  v.  United  States,  220  U.  S.  94,  31  Sup.  Ct. 

36S,  55  L.  ed.  384 171 

Bannon  v.  Insurance  Company  of  North  America,  115  Wis.  250, 

258,  91  N.  W.  666 235 

Bates  v.  Relyea,  23  Wend.  (N.  Y.)  336,  341 158 

Baxendale  v.  G.  W.  R.  Co.,  5  Com.  B.,  N.  S.,  330 237 

Bloxham  v.   Consumers'   Elec.  Light  &  St.  R.   Co.,  36  Fla.  539,  18 

So.  444,  51   Am.  St.   Rep.  44 115,  444 

Board  of  Railroad  Commrs.  v.  Market  Street  R.  Co.,  132  Cal.  677, 

64  Pac.  1065 115,138,162 

Boise  City  Irr.  &  L.  Co.  v.  Clark,  131  Fed.  415,  65  C.  C.  A.  406 

174,175,234 

Bonds  v.  Jones,  51  Cal.  303 Ill 

Boske  v.  Comingore,  177  U.  S.  459,  468,  20  Sup.  Ct.  705,  44  L.  ed. 

847 68 

Boston  Beer  Co.  v.  Massachusetts,  97  U.  S.  25,  24  L.  ed.  985 164 

(xxiii) 


Xxiy  TABLE   OF    CASES   CITED. 

Page 
Bowie  v.  Birmingham  R.  &  El.  Co.,  125  Ala.  397,  27  So.  1016,  82 

Am.  St.  Rep.  247,  50  L.  R.  A.  632 134 

Bradford  v.  St.  Louis,  I.  M.  &  S.  R.  Co.,  93  Ark.  244,  124  S.  W. 

516 134 

Brennan  v.  Titusville,  153  U.  S.  289,  14  Sup.  Ct.  829,  38  L.  ed.  719.    104 

Briggs  r.  McBride,  17  Or.  648,  21  Pac.  878 84 

Britton  v.  Atlantic  Air  Line  R.  Co.,  88  N.  C.  536 134 

Brunswick  Water  Dist.  v.  Maine  "Water  Co.,  99  Me.  380,  59  Atl. 

540 174,175 

Bullard  t.  Montana  Pac.  R.  Co.,  10  Mont.  168,  25  Pac.  120,  11  L. 

R.  A.  246 167 

Cadderly  v.  Portland,  44  Or.  150,  74  Pac.  710 €5 

Campbell  v.  Chicago,  M.  &  St.  P.  R.  Co.,  86  Iowa,  587,  53  N.  W. 

351,  17  L.  R.  A.  444 100 

Caughman  v.  Columbus  N.  &  H.  R,  Co.,  82  S.  C.  418,  64  S.  E.  240.  .  76 
Central  Stockyards  v.  L.  &  N.  R.  Co.,  192  U.  S.  568,  24  Sup.  Ct. 

339,  48  L.  ed.  565 186 

Central  Stockyards  Co.  v.  Louisville  &  N.  R.   Co.,   118  Fed.   113, 

55  C.  C.  A.  63,  63  L.  R.  A.  213 186 

Charleston  v.  Postal  Tel.  Co.,  3  Am.  Elect.  Cas.  56,  9  Ry.  &  Corp. 

L.   J.    129 105 

Charlotte,  C.  &  A.  R.  Co.  v.  Gibbes,  142  U.  S.  386,  12  Sup.  Ct.  255, 

35  L.  ed.  1051 66,  71,  83 

Chesapeake,  O.  &  S.  W.  R.  Co.  v.  Wells,  85  Tenn.  613,  4  S.  W.  5. .  134 
Chicago  &  A.  R.  Co.  v.  Carlinville,  200  111.  314,  65  N.  E.  730,  93 

Am.  St.  Rep.  190,  60  L.  R.  A.  391 163 

Chicago  &  A.  R.  Co.  v.  People  ex  rel.  Koener,  67  111.  11 66,  78,  263 

Chicago,  B.  &  Q.  R.  Co.  v.  Chicago,  166  U.  S.  226,  241,  17  Sup.  Ct. 

581,  41  L.  ed.  979,  986 166,  180 

Chicago,  B.  &.  Q.  R.  Co.  v.  Cutts,  24  L.  ed.  94 65,  80.  83 

Chicago,  B.  &  Q.  R.  Co.  v.  Drainage  Commission,  20O  U.  S.  561, 

26   Sup.  Ct.  341,  50  L.  ed.  596 72 

Chicago,  B.  &  Q.  R.  Co.  v.  Illinois,  200  U.  S.  561,  605,  26  Sup.  Ct. 

341,  50  L.   ed.  596 66,   83,   166,   180 

Chicago,  B.  &  Q.  R.  Co.  v.  Iowa,  94  U.  S.  155, 65,  71,  80,  83,  237 

Chicago,  B.  &  Q.  R.  Co.  v.  Jones,  149  111.  361,  37  N.   E.  247,  41 

Am.  St.  Rep.  278,  24  L.  R.  A.  141 

60,  61,  67,  69,  75,  78,  160,  169,  171,  220,  237,  240,  256 

Chicago,  B.  &  Q.  R.  Co.  v.  People,  77  111.  443 78 

Chicago  &  G.  T.  R,  Co.  v.  Wellman,  143  U.  S.  339,  12  Sup.  Ct.  400, 

36  L.  ed.  176 66,  71,  83,  93,  166 

Chicago,  M.  &  St.  P.  R.  Co.  v.  Ackley,  94  U.  S.  197,  24  L.  ed.  99.  . 

65,71,83 

Chicago,  M.  &  St.  P.  R.  Co.  v.  Minnesota,  134  IT.  S.  418,  10  Sup. 

Ct.  462,  33  L.  ed.  970 69,  73,  81,  93,  163,  166,  226,  242 


TABLE   OF    CASES    CITED.  XXV 

Page 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Solan,  169  U.  S.  133,  18  Sup.  Ct.  289, 

42  L.  ed.  688 63 

Chicago,  M.  &  St.  P.  R.  Co.  v.  Tompkins,  176  U.  S.   167,  172,  20 

Sup.  Ct.   336,  44  L.  ed.  417,  420 166 

Chicago  &  N.  W.  R.  Co.  v.  Dey,  35  Fed.  866,  1  L.  R.  A.  744 73,  79 

Chicago  &  N.  W.  R.  Co.  v.  Williams,  55  111.  185,  8  Am.  Rep.  641.  .    134 
Chicago,  R.  I.  &  P.  R.  Co.  v.  Arkansas,  219  U.  S.  453,  31  Sup.  Ct. 

275,  55  L.  ed.  290 63.  98 

Chicago,  R.  I.  &  P.  R.  Co.  v.  State,  23  Okl.  94,  99  Pac.  901 118 

Chiles  v.  Chesapeake  &  O.  R.  Co.,  218  U.  S.  71,  30  Sup.  Ct.  667,  54 

L.  ed.  936 134 

Chilton  t.  St.  Louis  &  I.  M.  R.  Co.,  114  Mo.  88,  21  S.  W.  457,  19 

L.  R.  A.  269 134 

Chinn  v.  Superior  Court,  156  Cal.  478,  105  Pac.  580 265 

Cincinnati,  I.  &  W.  R.  Co.  t.  Connorsville,  218  U.  S.  336,  31  Sup. 

Ct.  93,  54  L.  ed.  1060 180 

Cincinnati,  W.  &  Z.  R.  Co.  v.  Clinton  Commissioners,  1  Ohio  St.  77 

71,72 

City  of  Alme  v.  Clow,  146  Mich.  443,  109  N.  W.  853 104 

City  of  Kinsley  v.  Dyerly,  79  Kan.  1,  98  Pac.  228 104 

City  of  Leavenworth  v.  Ewing,  80  Kan.  58,  101  Pac.  64 96 

City  of  Muskegon  v.  Hanes,  149  Mich.  460,  112  N.  W.  1077 104 

City  of  Muskegon  v.  Zeeryp,  134  Mich.  181,  96  N.  W.  502 104 

City  of  Superior    v.    Douglas    County    Telephone    Co.    (Wis.),    122 

N.  W.  1023 255 

Coffey  t.  Atlantic  Coast  Line  R.  Co.,  79  S.  C.  150,  60  S.  E.  447.  . .  .     97 

Coger  v.  North  West  U.  P.  Co.,  37  Iowa,  154 134 

Coleman  v.  Newby,  7  Kan.  82 73 

Com.  v.  Williams,  72  Mass.  (6  Gray)   1 170 

Cooper  v.  Seaboard  Air  Line  R.  Co.,  78  S.  C.  81,  58  S.  E.  930 97 

Corporation  Commission  v.  Atlantic  Coast  Line  R.  Co.,  139  N.  C. 

126,   51   S.   E.   793 69,  180 

Cotting  v.  Kansas  City  Stockyards  Co.   (Cotting  v.  Godard),  183 

U.  S.  85,  22  Sup.  Ct.  30,  46  L.  ed.  99 171 

County  of  Hennepin  v.  Brotherhood  of  Gethsemane,  27  Minn.  460, 

8  N.  W.  595 118 

Covington  &  L.  T.  R.  Co.  v.  Sandford,  164  U.  S.  578,  17  Sup.  Ct. 

198,  41  L.  ed.  560 176 

Crandall  v.  Nevada,  73  U.  S.  (6  Wall.)  35,  18  L.  ed.  744,  745 99 

Creigter  v.  Shepler,  77  Kan.  834,  101  Pac.  619 104 

Dallman  v.  Clasen,  116  Wis.  113,  117,  92  N.  W.  565 235 

Danville  Water  Co.  v.   Danville,   180  U.  S.  619,  21  Sup.  Ct.  505, 

45  L.  ed.  696 172 

Davenport  Gas  &  E.  Co.  v.  Davenport,  124  Iowa,  31,  98  N.  W.  892.   172 


XXVI  TABLE   OF   CASES   CITED. 

Page 
Delk  r.  St.  L.  &  S.  F.  R.  Co.,  220  U.  S.  580,  31  Sup.  Ct.  617,  55  L. 

ed.   590 96 

De  Lorme  v.  Atlantic  Coast  Line  R.  Co.,  79  S.  C.  370,  60  S.  E. 

440 97 

Denaby  Main  Colliery  Co.  v.  Manchester    S.  &  L.  R.  Co.   (1885), 

L.  R.   11   App.   Cas.   97 114 

Denver  v.  Hubbard,  17  Colo.  App.  367,  68  Pac.  993 172 

Despres  v.  Zierleyn,  163  Mich.  309,  128  N.  W.  769 104 

Detroit  v.  Detroit  Citizens'  Street  R.   Co.,  184  U.  S.  382,   22   Sup. 

Ct.  410,  46  L.   ed.   605 172 

Detroit,  Ft.  W.  &  B.  I.  R.  Co.  v.  Osborn,  189  U.  S.  383,  23  Sup. 

Ct.  540,  47  L.  ed.  760 181 

Dewey  v.  Atlantic  Coast  Line  R.  Co.,  142  N.  C.  392,  55  S.  E.  292.  .   181 

De   Witt   v.   San   Francisco,   2   Cal.   289 Ill 

Douglas  v.  Kentucky,  168  U.  S.  488,  18  Sup.   Ct.   199,  42  L.   ed. 

553 164 

Dow  v.  Beidelman,  125  U.  S.  680,  8  Sup.  Ct.  1028,  31  L.  ed.  841 

66,  71,  83,  166 v 

Dowling  v.   Lancashire   Ins.   Co.,   92  Wis.   63,   65   N.   W.   738,   31 

L.    R.    A.    112 76,    242 

Eddy  v.  Kincaid,  28  Or.  557,  41  Pac.  157 84 

Erb  v.  Morasch,  177  U.  S.  548,  20  Sup.  Ct.  819,  44  L.  ed.  897 163 

Ex  parte  Agnew  (Neb.),  131  N.  W.  817 103,  106 

Ex  parte  King   (Neb.),    131   N.   W.   820 103,  106 

Ex  parte  Koehler,  11  Saw.  37,  27  Fed.  529 167 

Ex  parte  Kohler,  74  Cal.  38,  ,15  Pac.  436 Ill 

Ex  parte  Liddell,  93  Cal.  633,  29  Pac.  251 110 

Ex  parte  Young,  209  U.  S.  123,  28  Sup.  Ct.  441,  52  L.  ed.  714,  13 

L.    R.    A.,    N.    S.,    932 234 

Export  Shipping  Co.  v.  Wabash  R.  Co.,  14  Int.  Com.  Rep.  437^43 

113 

Express  Co.  v.  Maine   Cent.  R.  Co.,  57  Me.   188 133 

Express  Co.  v.  Wilmington  &  W.  R.  Co.,  Ill  N.  C.  463,  16  S.  E. 

393 71 

Evershed  v.  London  &  N.  W.  R.  Co.  (1878),  L.  R.  3  App.  Cas.  1029, 

5    Eng.    Rul.    Cas.    351 113 

Felt  t.  Denver  &  R.  G.  R.  Co.,  48  Colo.  249,  110  Pac.  215,  1136.  . .  66 
Fidelity  Loan  &  T.  Co.  v.  Douglas,  104  Iowa,  532,  73  N.  W.  1039 

115,  117 

Field  v.  Clark,  143  U.  S.  649,  12  Sup.  Ct.  495,  36  L.  ed.  294 72,  74 

Fitchburg  R.   Co.  v.  Grand  Junction  R.  Co.,  86  Mass.   (4  Allen) 

198 182 

Ft.   Smith  &  W.  R.   Co.  v.  Chandler  Cotton   Oil  Co.,   25   Okl.   82, 

106  Pac.  10 164 


TABLE   OF    CASES   CITED.  XXV11 

Page 
Frasier  v.   Charleston   &  W.  C.  R.  Co.,  81  S.  C.   162,  62  S.  E.  14 

101,107 

Frayham    v.    Charleston    &    N.    C.    R.    Co.    (S.    C),   71    S.    E.    813 

101,107 

Freeport  Water  Co.  v.  Freeport,  180  U.  S.  593,  21  Sup.  Ct.  493, 

45  L.  ed.  686 172 

Front    Street   Cable   R.    Co.   v.    Johnson    (1891),    2   Wash.    112,    25 

Pac.  1084,  11  L.  R.  A.  603 115,   116,  117 

Funk  v.  St.  Paul  City  R.  Co.,  61  Minn.  435,  63   N.   W.   1099,  52 

Am.   St.   Rep.   608,  29  L.   R.   A.   208 115,   117 

General  Oil  Co.  v.  Grain,  209  U.  S.  211,  28  Sup.  Ct.  475,  52  L.  ed.  754 

106,108 

Georgia   R.   Co.   v.   Railroad   Commission,   70   Ga.   694 

62,   67,  68,   69 

Georgia  R.  Co.  v.  Smith  et  al.,  Railroad  Commission,  70  Ga.  694 

61,71,75 

Gibbons  v.  Ogden,  22  U.  S.  (9  Wheat.)  1,  194,  240,  6  L.  ed.  23 

96,  98,  100 

Grand  Trunk  W.  R.  Co.  v.  Railroad  Commission  of  Indiana,  221 

U.  S.  400,  31  Sup.  Ct.  537,  55  L.  ed.  786 ISO 

Great  Western  R.  Co.  v.  Sutton  (1869),  L.  R.  4  H.  L.  226 113 

Guard  v.  Colland,  6  M.  &  S.  70 237 

Gulf,  C.  &  S.  F.  R.  Co.  v.  Hefley,  158  U.  S.  98,  15  Sup.  Ct.  802, 

39    L.    ed.    910 63 

Gulf,  C.  &  S.  F.  R.  Co.  v.  State  (Old.),  116  Pac.  176 102 

Gulf  C.  &  S.  F.  R.  Co.  v.  Texas,  204  U.  S.  403,  27   Sup.  Ct.  361, 

51  L.  ed.  540 106,  108 

Gulf  etc.  R.  Co.  v.  State  (Tex.  App.),  120  S.  W.  1028 76 

Gyger  v.  West  Philadelphia  R.  Co.,  136  Pa.  96,  108,  20  Atl.  399 

116,117 

Hall  v.  De  Cuir,  95  U.  S.  485,  24  L.  ed.  547 95 

Hanley   v.   Kansas    City    S.    R.    Co.,    187    U.    S.    617,    23    Sup.    Ct. 

215,   47   L.   ed.   333 97,    101,   107 

Hanover  Nat.  Bank  v.  Moyses,  186  U.  S.  181,  22  Sup.  Ct.  857,  46 

L.  ed.  1113 74 

Harding  v.  Funk,  8  Kan.  315 165 

Harrigan  v.  Gilchrist,  121  Wis.  127,  313,  99  N.  W.  909 235 

Harris  v.  Supervisors,  52  Cal.  553 Ill 

Haskell   v.  Cowben,   187  Fed.   401 94,   103 

Hellman  v.  Shoulters,  114  Cal.  136,  44  Pac.  915,  45  Pac.  1057.  ...  11" 
Henderson  Bridge  Co.   v.   Kentucky,   166  U.   S.   150,   17   Sup.   Ct. 

532,  41  L.  ed.  953 17] 

Henderson  v.  Wickham,  Mayor  of  New  York,  92  U.  S.  259,  23  L. 

ed.  543 99 

Herndon   v.   Chicago,  R.  T.   &   P.   R.   Co.,  218   U.   S.   135,   30  Sup. 

Ct.  633,  54  L.  ed.  633 98 


XXV111  TABLE   OF    CASES    CITED. 


High  r.  State,  2  Okl.  Cr.  161,  101  Pac.  115 102,  luo 

Hooper  v.  Chicago  M.   &  St.  P.   E.  Co.,  91  Iowa,   639,  60  N.  W. 

487 75,   169,   220,   238,   243,   255,   256 

Home  v.  Memphis  &  0.  R.  Co.,  41  Tenn.   (1  Cold.)    72 170 

Hudson  v.  State,  2  Okl.  Cr.  176,  101  Pac.  275 102,  103 

Hunter  v.  Charleston  &  W.  C.  E.  Co.,  81  S.  C.  169,  62  S.  E.  13.  . 

97,   101,   107 

Illinois  Cent.   R.   Co.  v.   Illinois,   108   U.   S.   541,   2  Sup.   Ct.   839, 

27   L.    ed.    818 71,    83 

Illinois  Cent.  E.  Co.  v.  People,  95  111.  313 78 

Independent  T.  L.  Co.  v.  Lake  Superior  Lumber  &  Box  Co.  (Wis.), 

131  N.  W.  408 64,  89 

Industrial  Siding  Cases,  140  N.  C.  239,  52  £   E.  941 180 

Inglin  v.  Hoppin,  156  Cal.  483,  105  Pac.  582 265 

In  Matter  of  Auburn  &  W.  R.  Co.,  37  App.  Div.  162,  55  N.  Y. 

Supp.  895 181,  182,  237 

In  re  Arkansas  Eate  Cases,  187  Fed.  290 164 

In  re  Bonds  of  So.  San  Joaquin  Irr.  Dist.   (Cal.),  119  Pac.  198.. 

110,265 

In  re  Canada  Northern  E.  Co.,  7  Fed.  563 163 

In  re  Davis,  54  Kan.  368,  49  Pac.  160 80 

In  re  Griner,  16  Wis.  423 74 

In  re  New  York   &  W.   W.   Co.,  98   Fed.   716 171 

In  re  North  Milwaukee,  93  Wis.  616,  67  N.  W.  1033,  33  L.  E.  A. 

638 74,    76,   242 

In  re  Opinion  of  Justices,  75  N.  H.  613,  72  Atl.  754 128 

In  re  Sims,  54  Kan.   1,  37  Pac.   135,  45  Am.   St.  Eep.  261,  25  L. 

E.   A.   110 80,   90 

Insurance  Company  v.  State,  86  Tex.  265,  24  S.  W.  401,  22  L.  E. 

A.  491 99 

International  Text-book  Co.  v.  Pigg,  217  U.  S.  91,  30  Sup.  Ct.  481, 

54  L.  ed.  678 101 

Interstate  Commerce  Commission  v.    Alabama    Midland    E.    Co., 

168  U.  S.  144,  18  Sup.  Ct.  45,  42  L.  ed.  414,  423 114 

Interstate  Commerce  v.  Cincinnati,  N.  O.  &  Texas  Pac.  E.  Co.,  167 

U.  S.  479,  499,  17  Sup.  Ct.  896,  900,  42  L.  ed.  243 93 

Interstate  Commerce  Commission  v.  Diffenbaugh   (U.  S.,  Nov.  13, 

1911) 165 

Interstate  Commerce   Commission   v.   Delaware,  L.   &  W.   E.   Co., 

220  U.  S.  235,  253,  31  Sup.  Ct.  392,  55  L.  ed.  448,  457 

113,   114,   160 

Interstate    Commerce    Commission    v.    Illinois    Cent.    E.    Co.,    215 

U.  S.  452,  30  Sup.  Ct.  155,  54  L.  ed.  280 63 

Jewel  Tea  Co.  v.  Lee's  Summit,  189  Fed.  280 104 


TABLE   OF    CASES    CITED.  XXIX 

Page 
Kansas  City,  O.  P.  &  El.  R.  Co.  v.  Railroad  Commission,  73  Kan. 

168,    169,   173,   84    Pac.    755 116 

Kansas  Natural  Gas  Co.  v.  Haskell,   172  Fed.   545 103 

Kinsey  v.  Union  Traction  Co.,  169  Ind.  601,  81  N.  E.  922 115 

Knoxville  t.  Knoxville  Water  Co.,  107  Tenn.  680,  64  S.  W.  1075,  61 

L.    R,    A.    897 172 

Law  v.  San  Francisco,  144  Cal.  388,  77  Pac.  1014 110 

Leavell  v.  Western  Union  Tel.  Co.,   116  N.  C.  220,  21  S.   E.  391, 

47  Am.  St.  Rep.  798,  27  L.  R.  A.  843 10O 

Leavenworth  County  v.  Miller,  7  Kan.  479,  12  Am.  Rep.  425 65 

Lehigh  Valley  R.  Co.  v.  Pennsylvania,  145  U.  S.  192,  12  Sup.  Ct. 

806,  36  L.   ed.  672 100 

Leibengood  v.  Mo.  K.  &  T.  Co.,  83  Kan.  25,  109  Pac.  988 164 

Leisg  v.  Hardin,  135  U.  S.  100,  10  Sup.  Ct.  681,  34  L.  ed.  128 108 

Leloup  v.  Port  of  Mobile,  127  U.  S.  640,  S  Sup.  Ct.  1383,  32  L. 

ed.  311 105 

Lincoln  Street  R.  Co.  v.  McClellan,  54  Neb.  672,  74  N.  W.  1074, 

69   Am.   St.   Rep.    736 115 

Locke's  Appeals,  72  Pa.  491,  498,  13  Am.  Rep.  716 72 

Logan  v.  United  States,  144  U.  S.  263,  283,  293,  12  Sup.  Ct.  622, 

626,  36  L.  ed.  429 68 

Los  Angeles  v.   Los  Angeles   City  Water  Co.,   177   U.  S.   558,   20 

Sup.  Ct.  736,  44  L.  ed.  8S6 172 

Louisville  &  N.  R.  Co.    ▼.  Eubank,  184  U.  S.  27,  22  Sup.  Ct.  277, 

46   L.   ed.   416 106 

Louisville  &  N.   R.   Co.  v.  Kentucky,   161  U.   S.   677,  16  Sup.   Ct. 

714,  40  L.  ed.  849 66,  83 

Louisville  &  N.  R.  Co.  v.  Kentucky,  183  U.  S.  503,  22  Sup.  Ct.  95, 

46  L.  ed.  298 68,  168,  170,  1S3 

Louisville  &  P.  R.  Co.  v.  Louisville  City  R.  Co.,  63  Ky.  (2  Duv.) 

175,    178    1]5 

Louisville  &  N.  R.   Co.  v.  Louisville  St.  R.   Co.,  100  Ky.  690,   19 

Ky.  Law  Rep.  11,  39  S.  W.  42 117 

Louisville  &  N.  R.  Co.  v.  Melton,  218  U.  S.  36,  30  Sup.  Ct.  676,  54 

L.    ed.    921 64 

Louisville  &  N.  R.  Co.  v.  Mottley,  219  U.  S.  467,  31  Sup.  Ct.  26o, 

55    L.    ed.    297 64,   170 

Louisville  &  N.  R.  Co.  v.  Schmidt,  177  U.  S.  230,  20  Sup.  Ct.  620, 

44    L.    ed.    747 225,226 

Louisville  &  N.  R.  Co.  v.  Silor,  186  Fed.  176 166 

Louisville  &  N.  R.  Co.  v.  Stockyards  Co..  212  U.  S.  132,  29  Sup.  Ct. 

246,  53  L.  ed.  44 186 

Louisville  &  N.  R.  Co.  v.  U.  S.,  186  Fed.  280 190 

Louisville  R.  Co.  v.  Mississippi,  133  U.  S.  587,  10  Sup.  Ct.  348,  33 

L.    ed.    784 185 

Lowder  v.  Heirons,  2  Moo.   102 237 


xxx  TABLE   OF    CASES   CITED. 

Page 
Madisonville  Traction  Co.  v.  St.  Bernard  Min.  Co.,  196  U.  S.  252, 

25  Sup.  Ct.  251,  49  L.  ed.  467 • m 

Mague    v.    Board    of    County    Commissioners,    84    Minn.    472,    88 

N.   W.    6 70 

Manhattan  &  Co.  v.  Sioux  City  Cable  R.  Co.,  68  Fed.  82,  86.  .116,  117 

Mass.  L.  &  T.  Co   v.  Hamilton,  88  Fed.  588 117 

Matter  of  Boston  Mining  &  M.  Co.,  51  Cal.  624 Ill 

Mayor  of  Worcester  v.  Norwich  &  W.  R.  Co.,  109  Mass.  103.  .180,  181 

McCord  v.  State,  2  Okl.  Cr.  214,  101  Pac.  280 102,  103,  164 

McCullock  v.  Maryland,  17  U.  S.   (4  Wheat.)   316,  415,  421,  423, 

4  L.   ed.   579 68 

Meadowcroft  v.  People,  163  111.  56,  45  N.  E.  303,  54  Am.  St.  Rep. 

447,  35  L.  R.  A.  176 17° 

Menacho  v.  Ward,  27  Fed.  529,  532 I69 

Messenger  v.  Pennsylvania  R.  Co.,  36  N.  J.  L.  407,  13  Am.  Rep. 

457,  37  N.  J.  L.  351,  18  Am.  Rep.  754 133,  160 

Minneapolis  &  St.  L.  E.  Co.  v.  Minnesota,  186  U.  S.  257,  22  Sup. 

Ct.  900,  46  L.  ed.  1151 66,  71,  83,  166 

Missouri,  K.  &  T.  R.  Co.  v.  Haber,  169  U.  S.  613,  18  Sup.  Ct.  488, 

42    L.    ed.    878 • 63 

Missouri,  K.  &  T.  R.  Co.  v.  New  Era  Milling  Co.,  80  Kan.  141, 

101  Pac.   1011 114>   164>  165 

Missouri,  K.  &  T.  R.  Co.  v.  State,  25  Okl.  437,  106  Pac.  85S 60 

Missouri,  O.  &  G.  R.  Co.  v.  People,  132  111.  559,  24  N.  E.  643,  22 

Am.   St.    Eep.    556 134 

Missouri,  O.  &  G.  R.  Co.  v.  State  (Old.),  119  Pac.  117 

84,  158,  180,  181,  185,  224,  265 

Missouri  Pac.  R.  Co.  v.  Kansas,  216  U.  S.  262,  30  Sup.  Ct.  330, 

54  L.   ed.   472 68,   134>  184 

Minneapolis,  St.  P.  &  Ste.  Marie  R.  Co.  v.  Railroad  Commission, 

136  Wis.  146,  116  N.  W.  915 

65,  71,  73,  74,  75,  76,  77,  89,  91,  117,  133,  158,  167,  168,  175, 

176,  180,  224,  234,  243 

Mitchell  v.   State  ex  rel.  Florence  Dispensary,  134  Ala.   392,  32 

So.   687    77 

Mobile  County  v.  Kimball,  102  U.  S.  691,  26  L.  ed.  238 63 

Mobile,  J.  &  K.  C.  R.  Co.  v.  Turnipseed,  219  U.  S.  35,  31  Sup.  Ct. 

136,  55  L.  ed.  78 64,  170 

Moers  v.  City  of  Beading,  21  Pa.  188,  202 72 

Moreland  v.  State,  2  Okl.  Cr.  237,  101  Pac.  138 102,  103 

Morgan's  La.   &  T.  R.   &  S.   S.   Co.   v.  Railroad  Commission,   109 

La.  247,  33  So.  214 60,  159,  182,  235,  239 

Morris-Scarboro-Moffitt  Co.  v.  Southern  Ex.  Co.,  146  N.  C.  167,  59 

S.  E.  667,  15  L.  R.  A..,  N.  S.,  983 97 

Munn  v.  Illinois,  94  U.  S.  113,  24  L.  ed.  77 80 

Munn  v.  People,  94  U.  S.  (4  Otto)  113,  24  L.  ed.  77 78 


TABLE   OF   CASES    CITED.  XXXI 

Page 

Nash  v.  Fries,  129  Wis.  120,  108  N.  W.  210 74 

Nashville,  C.  &  St.  L.  R.  Co.  v.  Alabama,  128  U.  S.  96,  9  Sup.  Ct. 

28,  32  L.  ed.  352,  2  Inters.  Com.  Eep.  238 98,  190 

Nathan  v.  Louisiana,  49  U.  S.  (8  How.)  73,  12  L.  ed.  992 99 

New  Orleans   Gaslight   Co.   v.   Drainage   Commrs.,   197  U.  S.  453, 

25  Sup.  Ct.  471,  49  L.  ed.  831 180 

New  York  Life  Ins.  Co.  v.  Deerlodge  County   (Mont.),  115  Pac. 

911    99 

New  York,  L.  E.  &  W.  R.  Co.  v.  Pennsylvania,  158  U.  S.  431,  15 

Sup.   Ct.  896,   39  L.  ed.   1043 170 

New  York  &  N.  E.  R.  Co.  v.  Bristol,  151  U.  S.  556,  571,  14  Sup.  Ct. 

437,  38  L.  ed.  269,  274 180 

New  York,  N.  H.  &  H.  R.  Co.  v.  New  York,  165  U.  S.  628,  17  Sup. 

Ct.  418,  41  L.  ed.  853 98,  190 

North  Carolina  Corporation  Commission  v.  Atlantic  Coast  Line  R. 

Co.,  137  N.  C.  1,  49  S.  E.  191,  115  Am.  St.  Rep.  636 183 

Northern  Pac.  R.  Co.  v.  Dustin,   142  U.  S.  492,  12  Sup.  Ct.   283, 

35   L.   ed.    1092 181 

Northern  Transp.  Co.  v.  Chicago,  99  U.  S.  635,  25  L.  ed.  336 180 

Northwestern  Fertilizer  Co.   v.  Hyde  Park,  97   U.  S.   659,  24  L. 

ed.    1036    164 

Ohio  V.  R.  Co.  v.  Lander,  104  Ky.  431,  47  S.  W.  344,  882 134 

Omaha  &  C.  B.  Street  R.  Co.  v.  International  Commerce  Commis- 
sion,   179   Fed.    243 115 

Omaha  Water  Co.  v.  Omaha,  147  Fed.  6,  77  C.  C.  A.  272 172 

Oregon  R.  &  Nav.  Co.  v.  Campbell,  173  Fed.  957,  970 

59,  61,  63,  82,  84,  85,  86,  87,  92,  94,  99,  106,  107,  161,   167,  177, 

219,  234,  236,  242,  256,  257,  258 

Oregon  R.  &  Nav.  Co.  v.  Railroad  Commission,  173  Fed.  989 244 

Osborne  v.  Florida,  164  U.  S.  654,  17  Sup.  Ct.  214,  41  L.  ed.  586.  .    105 
Osbourne  v.  San  Diego  L.  &  T.  Co.,  178  U.  S.  22,  20  Sup.  Ct.  860, 

44    L.    ed.    961 229,238 

Owensboro  v.  Owensboro  Water  Works  Co.,  191  U.  S.  358,  24  Sup. 

Ct.  82,  48  L.  ed.  217 172 

Pacific  Coast  S.  S.  Co.  v.  Railroad  Commissioners,  9  Saw.  253,  18 

Fed.   10    97 

Parker  v.  Hull,  71  Wis.  368,  37  N.  W.  351,  5  Am.  St.  Rep.  224 235 

Passenger  Cases   (Smith  v.  Turner),  48  U.  S.   (7  How.)    283,   12 

L.    ed.    702 99 

Patrick  v.  State,  17  Wyo.  260,  99  Pac.  588 10S 

Paul  v.  Virginia,  75  U.  S.  (8  Wall.)  168,  19  L.  ed.  357 99 

Pearsall  v.  Great  Northern  R.  Co.,  161  U.  S.  646,  16  Sup.  Ct.  705, 

40  L.   ed.   838 66,   71,     83 

Peik  v.  Chicago  &  N.  W.  R.  Co.,  94  U.  S.  164,  24  L.  ed.  97 

65,    71,   80,   83 


XXXil  TABLE   OF    CASES   CITED. 

Page 
Pensacola  Tel.  Co.  v.  Western  Union  Tel.  Co.,  96  U.  S.  1,  24  L. 

ed.    78    105 

People  v.  Abbott,  16  Cal.  358 Ill 

People  v.  Bunker,  128  Mich.  160,  87  N.  W.  90 104,  105 

People  v.  Cannon,  139  N.  Y.  32,  34  N.  E.  759,  36  Am.  St.  Rep. 

668    170 

People  v.  Knight,  171  N.  Y.  363,  64  N.  E.  155 100 

People  v.  Linda  Vista  Irr.  Dist.,  128  Cal.  477,  61  Pac.  86 110 

People  v.  Parks,  58  Cal.  624 110,  111 

People  v.  St.  L.,  A.  &  T.  H.  R.  Co.,  176  111.  512,  52  N.  E.  292,  35 

L.  R.  A.  656 134,  184 

People  v.  Sacramento  Drainage  Dist,,  155  Cal.  373,  103  Pac.  207..   109 

People  v.  Sawyer,  106  Mich.  428,  64  N.  W.  33 104 

People  v.  Smith,  147  Mich.  391,  110  N.  W.  1102 104 

People  v.  Stewart  (Mich.,  Nov.  3,  1911),  132  N.  W.  1070 104,  105 

People  v.  Superior  Court,  10O  Cal.   105,  34  Pac.  492 110 

People  ex  rel.  Hunt  v.  Chicago  &  A.  R.  Co.,  130  111.  175,  22  N.  E. 

857    134 

Peterson  v.  State,  79  Neb.  132,  112  N.  W.  306,  126  Am.  St.  Rep. 

651,  14  L.  R.  A.,  N.  S.,  292 163 

Phoenix  Ins.  Co.  v.  Welch,  29  Kan.  672 74 

Piatt  v.  San  Francisco,  158  Cal.  74,  110  Pac.  304 123 

Porter  v.  Charleston  &  S.  R.  Co.,  63  S.  C.  169,  41  S.  E.  108,  90 

Am.    St.    Rep.    670 97 

Portland,  R.  L.  &  P.  Co.  v.  Railroad  Commission,  56  Or.  468,  105 

Pac.  709,  109  Pac.  273 

...85,  113,  115,  117,  159,  160,  161,  162,  166,  167,  169,  170,  175,  224 
Prentis  v.  Atlantic  Coast  Line,  211  U.  S.  210,  226,  29  Sup.  Ct.  67, 

71,  53  L.  ed.  151 93,  235 

Railroad  Commission  Cases,  116  U.  S.  307,  6  Sup.  Ct.  334,  29  L. 

ed.  636 60,  61,  62,  75,  88 

Railroad  Commission  v.  Alabama  &  Cent.  Ga.  R.  Co.,  170  Fed.  225, 

239 77,166 

Railroad  Commission  v.  Atlantic   Coast  Line  R.  Co.,  71  S.   C.   130, 

50  S.  E.  641 71,  225 

Railroad  Commission  of  Texas  v.  Chicago,  R.  I.  &  G.  R.  Co.,  102 

Tex.  393,  117  S.  W.  794 60 

Railroad  Commission  v.  Houston  &  R.  C.  R.  Co.,  90  Tex.  340,  38 

S.  W.  750 75,  159,  161,  240 

Railroad  Commission  v.  Market  Street  R.  Co.,  132  Cal.  677-679,  682, 

683,  64  Pac.  1065 115,  116,  265 

Railroad  Commrs.  v.  Portland  &  O.  Cent.  R.  Co.,  63  Me.  269 181 

Railroad  Connection  Cases,  137  N.  C.  1,  49  S.  E.  191,  115  Am.  St. 

Rep.  636 134,  183 

Raleigh  Iron  Works  v.  Southern  R.  Co.,  148  N.  C.  469,  62  S.  E.  595     97 


TABLE   OF    CASES    CITED.  XXXI 11 

Page 
Reagan  v.  Farmers'  L.  &  T.  Co.,  154  U.  S.  362,  14  Sup.  Ct.  1047, 

38   L.   ed.   1014 60,   62,   75,   88,   166,   234 

Redlands  L.  &  C.  D.  Water  Co.  v.  City  of  Kedlands,  121  Cal.  312, 

53    Pac.    791 169,174 

Heed  v.  Anoka,  85  Minn.   297,  88  N.  W.  931 172 

Keid  v.  Colorado,  187  U.  S.  137,  23  Sup.  Ct.  92,  47  L.  ed.  108,  12 

Am.  Cr.   Rep.  506 63 

Right  v.  Adams  Express  Co.,  230  Pa.  631,  79  Atl.  760 163 

Riley  v.  Galveston  City  R.  Co.,  13  Tex.  Civ.  App.  247,  35  S.  W. 

826 115>   116 

Rio  Grande  So.  R.  Co.  v.  Campbell,  44  Colo.  1,  69  Pac.  986 66 

Riverside  &  A.  R.  Co.  v.  Riverside,  118  Fed.  741 172 

Rogers  Park  Water  Co.  v.  Fergus,  180  U.  S.  628,  21  Sup.  Ct.  490, 

45  L.  ed.  705 172 

Rotterman  v.  Western  Union  Telegraph  Co.,  127  U.  S.  411,  8  Sup. 

Ct.  1127,  32  L.  ed.  229 I05 

Ruggles  v.  Illinois,  108  U.  S.  526,  2  Sup.  Ct.  832,  27  L.  ed.  818.  .65,  71 
Ruggles  v.  People,  91  111.  256 63,  67,  78,  83 

St.  L.  &  S.  F.  R.  Co.  v.  Gill,  165  U.  S.  49,  15  Sup.  Ct.  4S4,  39  L. 

ed.  567 ■ 166,  234 

St.  Louis  &  S.  F.  R.  Co.  r.  State,  26  Okl.  62,  107  Pac.  929 

64,  95,  102,  171 

St.  Louis  &  S.  F.  R.  Co.  v.  Williams,  25  Okl.  662.  107  Pac.  428 

158,  184,  224,  236,  239 

St.  Louis  &  S.  W.  R,  Co.  v.  Arkansas,  217  U.  S.  136,  30  Sup.  Ct. 

476,  54  L.  ed.  698 9S 

Sams  v.  St.  Louis  &  M.  R.  Co.,  174  Mo.  53,  64,  69,  81,  73  S.  W.  686, 

61  L.  R.  A.  475 115,  H6 

San  Antonio  &  A.  P.  R.  Co.  v.  State,  79  Tex.  264,  14  S.  W.  1063.  .  181 
Sands  v.  Manistee  River  Imp.  Co.,  123  U.  S.  288,  295,  8  Sup.  Ct. 

113,  31  L.  ed.  149 106 

San  Diego  L.  &  T.  Co.  v.  Jasper,  189  U.  S.  439,  23  Sup.  Ct.  571, 

47  L.  ed.  892 • 173,  174,  175,  197 

San  Diego  L.  &  T.  Co.  v.  National  City,  174  U.  S.  739,  19  Sup.  Ct. 

804,  43  L.  ed.   1154 169,   171,  173 

San  Diego  Water  Co.  v.  San  Diego,  118  Cal.  556,  50  Pac.  633,  62 

Am.  St.  Rep.  261 174 

San  Francisco  &  S.  M.  El.  R,  Co.  v.  Scott,  142  Cal.  222,  75  Pac. 

575 11",  HS 

Saratoga  Springs  v.  Saratoga  Gas,  Elect.  Light  &  Power  Co.,  191 

N.  Y.  123,  83  N.  E.  693 77,  166 

Schwedes  v.  State,  1  Okl.  Cr.  660,  104  Pac.  765 102 

Seaboard  Air  Line  R.  Co.  v.  Florida,  203  U.  S.  261,  27  Sup.  Ct.  109 

66,  72,   - 

Sears  v.  Marshalitovvn  St.  R.  Co.,  65  Iowa,  742,  23  N.  W.  150 117 


XXxiy  TABLE   OF    CASES   CITED. 

Page 
Seawell  v.  Kansas  City,  Ft.  S.  &  M.  E.  Co.,  119  Mo.  235,  238,  24 

S.  W.   1004,  1006 100 

Shaw  v.  Gilbert,  111  Wis.  165,  86  N.  W.  1S8 235 

Smalley  v.  Yates,  36  Kan.  519,  13  Pac.  845 213 

Smith  v.  Alabama,  124  U.  S.  461,  8  Sup.  Ct.  564,  31  L.  ed.  508,  1 

Int.   Com.  Rep.   804 •  •   I90 

Smith  v.  Chamberlain,  38  S.  C.  529,  17  S.  E.  371,  19  L.  E.  A.  710.   134 

Smith  v.  Parr,  46  Colo.  364,  104  Pac.  401 104,  164 

Smith  v.  Seaboard  Air  Line  R.  Co.  (Ga.  App.),  73  S.  E.  523 175 

Smyth  v.  Ames,  169  U.  S.  466,  18  Sup.  Ct.  418,  42  L.  ed.  819 

67,  166,  168,  183,  234,  235,  240 

Southern  Pac.  Co.  y.  Campbell,  189  Fed.  693 85,  94,  95,  96,  186 

So.  Pac.  E.  Co.  v.  Minn.,  208  U.  S.  583,  38  Sup.  Ct.  341,  52  L.  ed. 

630 181 

Southern  E.  Co.  v.  Grizzle,  131  Ga.  287,  62  S.  E.  177 163 

Southern  E.  Co.  v.  King,  217  U.  S.  524,  30  Sup.  Ct.  594,  54  L.  ed. 

868 97>  163 

Spring  Valley  Water  Works  v.  San  Francisco,  192  Fed.  137..  172,  173 
Standard   Oil  Co.   of   Kentucky  t.   Tennessee,   217   U.   S.   413,   30 

Sup.  Ct.  543,  54  L.  ed.  87 170 

Stanislaus  County  v.  San  Joaquin  &  K.  Eiver  Canal  &  Irr.  Co., 

192  U.  S.  210,  24  Sup.  Ct.  241,  48  L.  ed.  412 171,  175 

State  v.  Boyer,  34  Utah,  257,  97  Pac.  129 104 

State  v.  Butterfield  Livestock  Co.,  17  Idaho,  441,  106  Pac.  455 96 

State  v.  Chicago,  M.  &  St.  P.  E.  Co.,  38  Minn.  281,  27  N.  W.  782 

69,71 

State  v.  Compson,  34  Or.  27,  54  Pac.  349 84 

State  v.  Copeland,  66  Minn.  322,  69  N.  W.  27,  61  Am.   St.  Eep. 

410,  34  L.  E.  A.  777 70 

State  v.  Davis,   50  Wash.   704,  97   Pac.   737 104 

State  v.  Duluth,  G.  &  W.  Co.,  76  Minn..  96,  108,  78  N.  W.  1032, 

57  L.  E.  A.  63 H6 

State  v.  Eighteen  Casks  of  Beer,  24  Okl.  786,  104  Pac.  1093 103 

State  v.  Farmers'  L.  &  T.  Co.,  116  U.  S.  307,  6  Sup.  Ct.  334,  374, 

1191,  29  L.  ed.  636 69 

State  v.  Forkner,  94  Iowa,  1,  62  N.  W.  772,  28  L.  E.  A.  206 63 

State  v.  Freemont,  E.  &  M.  O.  E.  Co.,  22  Neb.  313,  35  N.  W.  118.  .      71 

State  v.  Glasby,  50  Wash.  598,  97  Pac.  734 104 

State  v.  Grant  Cain,  69  Kan.  186,  189,  190,  76  Pac.  443 116 

State  v.  Great  Northern  E.  Co.,  100  Minn.  445,  111  N.  W.  289 

69,203,204 

State  v.  Gulf  E.  Co.,  55  Tex.  Civ.  App.  108,  118  S.  W.  730,  736. ..  .   128 
State  v.  Haleyman,  55  S.  C.  207,  31  S.  E.  362,  33  S.  E.  366,  45 

L.  E.  A.  567 101,  107 

State  v.  Johnson,  61  Kan.  803,  60  Pac.  1068,  49  L.  E.  A.  662 

67,73,80,184 


TABLE   OF    CASES   CITED.  XXXV 

Page 

State  v.  Lemp  Brewing  Co.,  79  Kan.  705,  102  Pac.  504 102 

State  v.  Northern  Pac.  K.  Co.,  53  Wash.  673,  102  Pac.  876 64 

State  v.  Northwestern  Tel.  Co.  (Mont.),  117  Pac.  93 105 

State  v.  Pabst  Brewing  Co.   (La.),  55  So.  349 101 

State  v.  Parker,   26   Vt.   357 67,     74 

State  v.  St.  Paul  M.  &  M.  E.  Co.,  98  Minn.  380,  118  N.  W.  261.  . .  .   2U4 

State  v.  Sherman,  81  Kan.  874,  107  Pac.  33 104 

State  v.  So.  Pac.  Co.,  23  Or.  424,  31  Pac.  961 167,  168,  2 

State  v.  State  Capital  Co.,  24  Okl.  252,  103  Pac.  1021 102 

State  v.  Thomas,  144  Ala.  77,  40  So.  271,  113  Am.  St.  Rep.  17,  6 

Am.  &  Eng.  Ann.  Cas.  744,  2  L.  R.  A.,  N.  S.,  1011 170 

State  v.  United  States  Express  Co.   (Minn.),  131  N.  W.  489 

101,118 

State  v.  Wagoner,  77  Minn.  501,  80  N.  W.  633,  1134,  77  Am.  St. 

Rep.  680,  46  L.  R.  A.  442 70 

State  v.  Western  Union  Tel.  Co.   (Mont.),  117  Pac.  93 105 

State  v.  Western  Union  Tel.  Co.,  113  N.  C.  223,  18  S.  E.  391,  22 

L.   R.   A.   571 100 

State  v.  Young,  29  Minn.  474,  9  N.  W.  373 69 

State  ex  rel.   Adams   v.   Burdge,  95   Wis.  390,  70  N.   W.   347,   60 

Am.  St.  Rep.  123,  37  L.  R,  A.  157 74 

State  ex  rel.  Atkinson  v.  Northern  Pac.  R.  Co.,  53  Wash.  673,  102 

Pac.   876    21 

State  ex  rel.  Barton  County  v.  Kansas  City  Ft.  S.  &.  G.  R.  Co.,  32 

Fed.    722    164»  180 

State  ex  rel.  Board  of  Railroad  Commrs.  v.  Duluth,  W.  &  P.  R. 

Co.,  25  S.  D.  106,  125  N.  W.  565 60,  254 

State  ex  rel.  Faber  v.  Hinkel,  131  Wis.  103,  111  N.  W.  217 Ti 

State  ex  rel.  Railroad  &  Warehouse  Commission  v.  M.  &  St.  L. 

R.  Co.,  80  Minn.  190,  83  N.  W.  60 

75,  81,  159,  238,  239,  240,  254 

State   ex   rel.   Taylor   v.   Missouri   Pac.   R.   Co.,   76   Kan.   467,   92 

Pac.   606 59,  60,  62,  63,  65,  67,  68,  70,   71, 

73,  75,  80,  91,  93,  134,  184,  185,  225,  226,  234,  240,  243,  253,  254 
State  ex  rel.  Tompkins  v.  Chicago,  M.  &  St.  P.  R.  Co.,  11  S.  D. 

282,  77  N.  W.  104 241 

Steenerson  v.  G.  N.  R.  Co.,  69  Minn.  353,  72  N.  W.  713 240 

Sternberger  v.  Cape  Fear  &  Y.  V.  R.  Co.,  29  S.  C.  510,  7  S.  E. 

836,  2  L.  R.  A.  105 101,  107 

Stone  v.  Farmers'  Loan  &  T.  Co.,  116  U.  S.  307,  6  Sup.  Ct.  334, 

388,  1191,  29  L.  ed.  636 66,  67,  69,  71,  79,  82,  83,  166 

Stone  v.  Illinois  C.  R.  Co.,  116  U.  S.  347,  6  Sup.  Ct.  348,  29  L. 

ed.    650 66,    71,  83 

Stone  v.  Mississippi,  101  U.  S.  814,  25  L.  ed.  1079 164 

Stone  v.  New  Orleans  &  N.  E.  R.  Co.,  116  U.  S.  352,  6  Sup.  Ct. 

349,  29  L.  ed.  651 t>6,  71,  83 

Stone  v.  Wisconsin,  94  U.  S.  161,  24  L.  ed.  102 65,  71 


XXXVi  TABLE   OF    CASES    CITED. 

Page 
Tallassee  Falls  Mfg.   Co.  v.  Commissioner's  Court,   158  Ala.   363, 

48    So.    354 77 

Tampa  v.  Tampa  Water  Works  Co.,  45  Fla.  623,  34  So.  631 172 

Telegraph  Co.  v.  Texas,  105  U.  S.  460,  26  L.  ed.  1067 105 

Texas  &  N.  O.  E.  Co.  v.  Miller,  221  U.  S.  408,  31  Sup.  Ct.  534.  55 

L.   ed.   789 163,  164 

Texas  &  P.  R.  Co.  v.  Interstate  Commerce  Commission,  162  U.  S. 

197,   222,   16   Sup.   Ct.   661,   40  L.   ed.   940,   948,   5   Int.   Com. 

Rep.    405     113 

The  Daniel  Ball  v.  United  States,  77  U.  S.   (10  Wall.)   557,  565, 

19  L.  ed.  999 106 

Thomas  &  Houston  El.  Co.  v.  Simon,  20  Or.  60,  75,  25  Pac.  147, 

149,  23  Am.  St.  Rep.  86,  10  L.  R.  A.  251 116 

Tiger  v.  Western  Investment  Co.,  221  U.  S.  286,  31  Sup.  Ct.  578, 

55  L.  ed.  738 262 

Tilly  v.  Railroad  Commissioners,  4  Woods,  427,  5  Fed.  641 72 

Titsworth  v.  State,  2  Okl.  Cr.  268,  101  Pac.  288 94 

Township  of  Pine  Grove  v.  Talcott,  86  U.  S.  666,  22  L.  ed.  277 

63 

Trademark  Cases,  100  U.  S.  82,  25  L.  ed.  550 99 

Traynham  v.  Charleston  &  W.  C.  R.  Co.  (S.  C),  71  S.  E.  813 97 

Union   Bridge   Co.  v.  United   States,   204  U.  S.   364,   27   Sup.   Ct. 

367,    51    L.    ed.    523 72,  180 

Union  Pac.  R.  Co.  v.  Peniston,  85  U.   S.   (18  Wall.)   5,  31,  21  L. 

ed.   787 74 

United  States  v.  E.  C.  Knight  Co.,  156  U.  S.  1,  15  Sup.  Ct.  249, 

39   L.    ed.    325 99 

United  States  v.    Hoake,    187    Fed.    992 94 

United  States  v.  Lehigh  Valley  R.  Co.,  115  Fed.  374 100 

United  States  v.  Steffens,  100  U.  S.  82,  25  L.  ed.  550 99 

United  States  v.  Tucker,  188  Fed.  741 98 

Vicksburg  Water  Works  Co.  v.  Vicksburg,  185  U.  S.  82,  22  Sup. 

Ct.  585,  46  L.   ed.   816 172 

Wabash,  St.  L.  &  P.  R.  Co.  v.  Illinois,  118  U.  S.  557,  7  Sup.  Ct. 

4,  30  L.  ed.  244 66 

Wadsworth  v.   Union  Pac.   R.  Co.,   18   Colo.   600,  33  Pac.  515,  36 

Am.  St.  Rep.  309,  23  L.  R.  A.  812 65 

Ward  v.  State  ex  rel.  Parker,  154  Ala.  227,  45  So.  655 77 

Wayman  v.  Southard,  23  U.  S.  (10  Wheat.)  1,  6  L.  ed.  253 75,  91 

Wells,  Fargo  Co.  v.  Oregon  R.  &  Nav.  Co.,  8  Saw.  600,  15  Fed.  561 

167 

Welton  v.  Missouri,  91  U.  S.  281,  23  L.  ed.  347 98 


TABLE   OF    CASES    CITED.  XXXVli 

Page 
West  v.  Kansas  City  Natural  Gas  Co.,  221  U.  S.  229,  31   Sup.  Ct. 

564,  55  L.  ed.  716 103,   165 

West  Chester  &  P.  R.  Co.  v.  Mites,  55  Pa.  209,  93  Am.  Dec.  744.  .  .  134 
Western  Union  Tel.  Co.  v.  Commercial  Milling  Co.,  218  U.  S.  406, 

31   Sup.   Ct.  59,  54  L.   ed.    1088 163,    166 

Western  Union  Tel.  Co.  v.  Crovo,  220  U.  S.  364,  3d  Sup.  Ct.  399, 

55  L.  ed.  498 171 

Western  Union  Tel.  Co.  v.  Hughes,  104  Va.  241,  51  S.  E.  225 100 

Western  Union  Tel.  Co.  v.  James,  162  U.  S.  656,  16  Sup.  Ct.  934, 

40  L.  ed.  1107 63 

Western  Union  Tel.  Co.  v.  Kansas,  216  U.  S.  27,  30  Sup.  Ct.  190, 

54   L.    ed.    366 63,    95 

Western  Union  Tel.  Co.  v.  Meyer,  38  Fed.  53,  3  L.  R.  A.  449 105 

Western  Union  Tel.   Co.  v.   Reynolds,   100  Va.  465,  41  S.  E.  857, 

93    Am.    St.    Rep.    973 100 

Whitson  v.  Franklin,  34  Ind.  392 163 

Wight  v.  United  States,  167  U.  S.  512,  17  Sup.  Ct.  822,  42  L.  ed. 

258 114 

Wilcox  v.  People,  46  Colo.  382,  104  Pac.  408 101,  104 

Williams  v.  Fears,  179  U.  S.  277,  21  Sup.  Ct.  131,  45  L.  ed.  189.  . .      99 

Williams  v.  Molter,  187  Fed.  700 105 

Winona  &  St.  P.  R.  Co.  v.  Blake,  94  U.  S.  180,  24  L.  ed.  99.  .  .65,  71,  83 
Wins-low  t.   Atlantic   Coast  Line   R.    Co.,   70  S.   C.   344,   60   S.   E. 

709 97 

Wisconsin,  M.  &  P.  R.  Co.  v.  Jacobson,  179  U.  S.  287,  21  Sup.  Ct. 

115,  45  L.  ed.  194 66,  83,  135,  181,  185,  186 

Wood  v.  Election  Commissioners,  58  Cal.  561 Ill 


THE 

CALIFOBNIA 
PUBLIC  UTILITIES  ACT 


CHAPTER  I. 

INTRODUCTORY. 


§  1.  California  Public  Utilities  Act. 

§  2.  The  Illinois  Railroad  and  Warehouse  Commission  Act. 

§  3.  The  Interstate  Commerce  Commission  Act. 

§  4.  Similar   Governmental   Policy    in   Other   Countries. 

§  1.  California  Public  Utilities  Act  is  not  new  legis- 
lation in  an  untrodden  field,  but  is  the  most  recent 
development  of  the  principle  of  corporation  control  by 
the  state,  rate  regulation,  and  the  like,  and  is  wel- 
comed by  the  corporations,  who  are  anxious  that  just 
and  remunerative  rates  shall  be  established  and  main- 
tained. The  California  Act  is  one  of  the  most  ad- 
vanced that  has  yet  been  adopted  in  any  state.  The 
Commission  is  given  more  absolute  power  than  by 
any  other  of  the  similar  acts,  unless  an  exception  is 
to  be  made  in  favor  of  the  Minnesota  Act  of  1887,  in 
which  act  the  Railroad  Commission  of  that  state  was 
given  absolute  power  and  its  action  made  final.  This 
Minnesota  Act  cut  off  all  right  of  appeal  to  the  courts, 
and  for  this  reason  was  held  to  be  unconstitutional.1 

At  first  these  acts  merely  aimed  to  control  rates, 
prevent  unfair  preferences,  prohibit  rebates,  protect 
life,  and  the  like;  but  the  tendency  now  is  to  ex- 
tend to  complete  corporate  management  and  control; 
some  of  the  acts, — and  particularly  the  California  Act, 

i  See  post,  c.  3,  §  57. 

1  (1) 


2  CALIFORNIA   PUBLIC   UTILITIES   ACT.  §  2 

— going  to  the  extent  of  prohibiting  stock  and  bond 
issues,  and  the  like,  without  the  consent  of  the  Com- 
mission being  first  procured,  and  enforcing  these  reg- 
ulations by  penalties  prescribed. 

While  provisions  of  this  character  have  been  intro- 
duced in  the  statutes  of  several  of  the  states,  few  or 
none  of  them  go  to  the  extent  of  the  provision  found 
in  the  California  Act.  Thus,  the  Nevada  legislature 
in  1911  passed  an  act  which  gives  a  Eailroad  Commis- 
sion authority  over  all  public  utilities,2  the  same  as 
does  the  California  Act,  but  does  not  give  authority 
or  control  over  the  capital  stock,  bonds,  nor  other 
securities  of  corporations.3  The  Ohio  legislature  of 
1911  passed  an  act  similar  to  the  California  Act,  and 
broader  than  the  Nevada  Act,  in  that  the  Commission 
created  by  the  Ohio  Act  is  given  full  power  and  super- 
vision over  security  issues  and  mergers.4  Under  the 
Oregon  Public  Utilities  Act,  which  has  been  held  up 
by  referendum,  there  is  no  restriction  as  to  stocks  or 
bonds ; 5  the  Washington  Act  contains  no  stock  or 
bond  restrictions;6  but  the  Wisconsin  Act  provides 
that  "no  stock  nor  bonds,  ....  shall  be  issued  until 
there  shall  have  been  recorded  upon  the  books  of  the 
corporation  the  approving  certificate  of  the  Railroad 
Commission,"7  and  makes  all  stock,  certificates  of 
stock,  bonds  and  other  evidence  of  indebtedness,  is- 
sued contrary  to  the  provisions  of  the  act,  void.8 

§  2.  Illinois  Railroad  and  Warehouse  Commission 
Act  of  1871,  giving  to  the  Commission  authority  to 
fix  passenger  and  freight  rates  on  all  railroads  for 

2  Nev.  Laws  1911,  §§  82,  322,  459. 

8  Nev.  Laws  1911,  §  376. 

*  Ohio  Sess.  Laws  1911,  vol.  102,  p.  549  et  seq. 

R  Or.  Gen.  Laws   1911,  p.  483  et  seq. 

6  See  2  Wash  Stats.,  par.  8627. 

i  Wis.  Stats.  1907,  pp.  413,  1753,  1754. 

«  Id.,  pp.   414,   1753-1758. 


§  3  INTRODUCTORY.  3 

carriage  within  the  state,  was  the  pioneer  act  in  this 
field  of  legislation,  and  fixed  the  policy  and  furnished 
the  model  for  all  similar  acts  since  passed  in  the  vari- 
ous other  states. 

The  litigation  with  railroads  which  followed  the  es- 
tablishment of  the  Illinois  Commission  and  investing 
it  with  such  broad  discretionary  power  first  fully 
demonstrated  the  public  character  of  the  business  car- 
ried on  and  conducted  by  railroads,  as  distinguished 
from  purely  private  business  enterprises,  and  firmly 
establishes  the  principle  of  their  liability  to  whole- 
some and  reasonable  regulation  and  control  by  the 
government  in  the  conduct  of  their  business  and 
affairs,  in  the  interest  of  the  people  at  large,  and  the 
promotion  of  the  general  public  welfare. 

§  3.  The  Interstate  Commerce  Commission  Act  of 
the  federal  government  followed  in  1887,  providing  a 
National  Commission  to  supervise  and  regulate  inter- 
state railroads  and  commerce.  This  act  has  been  bit- 
terly fought  by  railroads,  and  others  affected  thereby, 
and  its  validity,  as  the  exercise  of  the  police  powers 
of  Congress  under  the  provision  of  the  federal  con- 
stitution, has  been  fully  and  completely  demonstrated 
in  a  large  volume  of  litigation,  which  need  not  be  cited 
here,  because  it  is  foreign  to  the  scope  of  this  manual. 

This  act  of  Congress  was  followed  by  the  Arbitra- 
tion Act  of  1888,  which  was  replaced  by  an  act  cover- 
ing the  same  subjects  passed  in  1889;  by  the  Sherman 
Anti-Trust  Act  in  1890;  by  the  Oleomargarine  and 
Dairy  Products  Act  of  1890;  by  the  Safety  Appliances 
Act  of  1893;  by  the  Bureau  of  Corporations  Act  of 
1903;  by  the  Elkins  Act  of  1903;  by  the  Rate  Regula- 
tion Act  of  1906;  by  the  Employers'  Liability  Acts  of 
1906  and  1908;  by  the  Pure  Food  and  Drugs  Act  of 
1906,  and  other  similar  statutes,  showing  unmistak- 
ably that  in  both  the  state  and  federal  governments 


4  CALIFORNIA   PUBLIC   UTILITIES   ACT.  §  4 

the  large  degree  of  liberty  and  irresponsibility  which 
has  heretofore  existed  in  all  business  and  commerce 
in  which  the  general  public  are  interested,  and  which 
affects  the  general  public  welfare  and  health,  have, 
since  1887,  gradually  but  surely  and  effectually  passed 
away  under  the  constant  tightening  of  the  reins  of 
government  under  the  exercise  of  the  police  power  of 
the  state  and  the  federal  governments. 

The  general  policy  of  all  these  and  similar  laws 
seems  to  be  to  maintain  the  contention  that  the  right 
to  "life,  liberty  and  property,' '  guaranteed  by  the 
constitution  is  not  an  absolute  right,  but  one  which  is 
subject  to  a  wise  and  wholesome  regulation  by  the 
government  in  the  interest  and  welfare  of  the  whole 
people,  from  whom,  under  the  genius  of  our  govern- 
ment, all  power  emanates,  and  in  whom  all  power  not 
specifically  delegated  resides. 

§  4.  Similar  Governmental  Policy  Prevails  in  Other 
Countries  touching  the  interest  and  general  welfare 
of  the  people  at  large.  But  a  discussion  of  this  mat- 
ter is  foreign  to  the  purpose  of  the  present  manual, 
which  aims  to  be  practical,  not  learned,  and  we  need 
not  do  more  than  refer  the  reader  to  the  Prussian  Act 
of  1875,  the  Building  Act  of  Saxony  of  1900,  the 
Housing  and  Workingmen's  Act  of  the  Grand  Duchy 
of  Hesse,  passed  in  1902,  and  other  similar  acts. 


CONSTITUTIONAL  PROVISIONS. 


CHAPTER  II. 

CONSTITUTIONAL    PROVISIONS. 

§     5.     Introductory. 

§  6.  Alabama  Constitution — (a)  Distribution  of  Powers  of  Govern- 
ment. 

§     7.     (b)     Corporation  Control — Railroads  and   Canals. 

§  8.  California  Constitution — (a)  Distribution  of  Powers  of  Govern- 
ment. 

§     9.     (b)     Corporation  Control. 

§  10.     (c)     Railroad  Commission. 

§  11.  Georgia  Constitution — (a)  Distribution  of  Powers  of  Govern- 
ment. 

§  12.     (b)      Corporation  Control. 

§  13.  Illinois  Constitution — (a)  Distribution  of  Powers  of  Govern- 
ment. 

§  14.     (b)     Corporation  Control. 

§  15.     Iowa  Constitution — (a)     Distribution  of  Powers  of  Government. 

§   16.     (b)     Corporation  Control. 

§  17.  Kansas  Constitution — (a)  Distribution  of  Powers  of  Govern- 
ment. 

§   18.     (b)     Corporation  Control. 

§  19.  Louisiana  Constitution — (a)  Distribution  of  Powers  of  Gov- 
ernment. 

§  20.     (b)     Corporation  Control. 

§  21.     (e)     Railroad  Commission. 

§  22.  Minnesota  Constitution — (a)  Distribution  of  Powers  of  Gov- 
ernment. 

§  23.     (b)     Corporation  Control. 

§  24.  Mississippi  Constitution — (a)  Distribution  of  Powers  of  Gov- 
ernment. 

§  25.     (b)     Corporation  Control. 

§  26.  New  York  Constitution — (a)  Distribution  of  Powers  of  Gov- 
ernment. 

§  27.     (b)     Corporation  Control. 

§  28.  North  Carolina  Constitution — (a)  Distribution  of  Powers  of 
Government. 

§  29.     (b)     Corporation  Control. 

§  30.  Oklahoma  Constitution — (a)  Distribution  of  Powers  of  Gov- 
ernment. 

§  31.     (b)     Corporation    Control — Railroad    and    Public    Service 

Corporations. 

§  32. (c)     Corporation    Commission. 

§  33.  Oregon  Constitution — (a)  Distribution  of  Powers  of  Govern- 
ment. 


6  CALIFORNIA   PUBLIC   UTILITIES   ACT.  §  5 

§  34.     (b)     Corporation  Control. 

§  35.  Texas  Constitution — (a)  Distribution  of  Powers  of  Govern- 
ment. 

§  36.     (b)     Corporation   Control — (1)     Railroads. 

§  37. (2)     Private   Corporations. 

§  38.  Washington  Constitution — (a)  Distribution  of  Powers  of  Gov- 
ernment. 

§  39.     (b)     Corporation  Control. 

§  40.  Wisconsin  Constitution — (a)  Distribution  of  Powers  of  Gov- 
ernment. 

§  41.     (b)     Corporation  Control. 

§  5.  Introductory. — In  this  chapter  there  is  given, 
for  the  convenience  of  reference  by  such  as  may  desire 
it,  the  constitutional  provisions  of  those  states  in 
which  originated  the  volume  of  litigation  and  decisions 
growing  out  of  the  establishment  of  Railroad  Com- 
missions, and  of  Commissions  with  like  powers  and 
duties  under  another  designation,  for  the  purpose  of 
rate  regulation  and  control  of  common  carriers  and 
other  public  utilities, — which  decisions  are  hereafter 
cited.  These  constitutional  provisions  given  naturally 
fall  under  two  heads,  to  wit: 

(a)  Distribution  of  Powers  in  the  state  govern- 
ment. This  head  is  important,  and  has  been  drawn 
into  consideration  and  discussion,  in  considering  and 
determining  the  constitutionality  of  legislation  estab- 
lishing railroad  and  kindred  commissions.1 

(b)  Provisions  Providing  for  a  Commission  and 
rate  and  traffic  regulation  and  control  by  the  state 
legislature,  or  by  a  Commission  or  other  body  created 
by  the  legislature  for  that  purpose.  The  absence  of 
such  a  constitutional  provision  in  no  way  affects  the 
legality  or  constitutionality  of  legislation  seeking  to 
control  these  matters  directly  or  through  a  Commis- 
sion or  other  body  created  by  the  legislature  for  that 
purpose.2 

i  See  post,  c.  3,  §  64. 
*  See  post,  c.  3,  §  48. 


§§  6,  7  CONSTITUTIONAL   PROVISIONS.  7 

§  6.  Alabama  Constitution— (a)  Distribution  of 
Powers  of  Government.— §  42.  The  powers  of  the 
government  of  the  state  of  Alabama  shall  be  divided 
into  three  distinct  departments,  each  of  which  shall 
be  confided  to  a  separate  body  of  magistracy,  to  wit: 
That  which  are  legislative,  to  one;  those  which  are 
executive,  to  another;  and  those  which  are  judicial,  to 
another. 

§  43.  The  government  of  the  state  except  in  the 
instances  in  this  constitution  hereinafter  expressly 
directed  or  permitted,  the  legislative  department  shall 
never  exercise  the  executive  and  judicial  powers,  or 
either  of  them;  the  executive  shall  never  exercise  the 
legislative  or  judicial,  or  either  of  them;  the  judicial 
shall  never  exercise  the  legislative  and  executive 
powers,  or  either  of  them;  to  the  end  that  it  may  be 
a  government  of  laws  and  not  of  men.3 

§  7.     (b)     Corporation     Control  —  Railroads 

and  Canals— §  242.  All  railroads  and  canals,  not 
constructed  and  used  exclusively  for  private  purposes, 
shall  be  public  highways,  and  all  railroads  and  canal 
companies  shall  be  common  carriers.  Any  associa- 
tion or  corporation  organized  for  the  purpose  shall 
have  the  right  to  construct  and  operate  a  railway  be- 
tween any  points  in  this  state,  and  connect  at  the  state 
line  with  railroads  of  other  states.  Every  railroad 
company  shall  have  the  right  with  its  road  to  inter- 
sect, connect  with,  or  cross  any  other  railroad,  and 
each  shall  receive  and  transport  the  freight,  passen- 
gers and  cars,  loaded  or  empty,  of  the  others,  without 
delay  or  discrimination. 

§  243.  The  power  and  authority  of  regulating  rail- 
road freight  and  passenger  tariffs,  the  locating  and 
building  of  passenger  and  freight  depots,  correcting 

»  Ala.   Const.   1901,   art.   III. 


8  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  7 

abuses,  preventing  unjust  discrimination  and  extor- 
tion and  requiring  reasonable  and  just  rates  of  freight 
and  passenger  tariffs,  are  hereby  conferred  upon  the 
legislature,  whose  duty  it  shall  be  to  pass  laws  from 
time  to  time  regulating  freight  and  passenger  tariffs, 
to  prohibit  unjust  discrimination  on  the  various  rail- 
roads, canals  and  rivers  of  the  state,  and  to  prohibit 
the  charging  of  other  than  just  and  reasonable  rates, 
and  enforce  the  same  by  adequate  penalties. 

§  244.  No  railroad  or  other  transportation  com- 
pany or  corporation  shall  grant  free  passes  or  sell 
tickets  or  passes  at  a  discount,  other  than  as  sold  to 
the  public  generally,  to  any  member  of  the  legislature, 
or  to  any  officer  exercising  judicial  functions  under 
the  laws  of  this  state;  and  any  such  member  or  officer 
receiving  such  pass  or  ticket  for  himself  or  procuring 
the  same  for  another,  shall  be  guilty  of  a  misdemeanor, 
and  upon  conviction  shall  be  fined  not  exceeding  five 
hundred  dollars  and,  at  the  discretion  of  the  court 
trying  the  case,  in  addition  to  such  fine,  may  be  im- 
prisoned for  a  term  not  exceeding  six  months,  and 
upon  conviction,  shall  be  subject  to  impeachment  and 
removal  from  office.  The  courts  having  jurisdiction 
shall  give  this  law  specially  in  charge  to  the  grand 
juries,  and  when  the  evidence  is  sufficient  to  authorize 
an  indictment,  the  grand  jury  must  present  a  true 
bill.  The  circuit  court  or  any  court  of  like  jurisdic- 
tion in  any  county  into  which  such  member  or  officer 
is  transported  by  the  use  of  such  prohibited  pass  or 
ticket,  shall  have  jurisdiction  of  the  case,  provided, 
only  one  prosecution  shall  be  had  for  the  same  offense; 
and  provided  further,  that  the  trial  and  judgment  for 
one  offense  shall  not  bar  a  prosecution  for  another 
offense,  when  the  same  pass  or  ticket  is  used ;  and  pro- 
vided further,  that  nothing  herein  shall  prevent  a 
member  of  the  legislature  who  is  a  bona  fide  employee 


§§8,9  CONSTITUTIONAL   PROVISIONS.  9 

of  a  railroad  or  other  transportation  company  or  cor- 
poration at  the  time  of  his  election,  from  accepting 
or  procuring  for  himself  or  another,  not  a  member  of 
the  legislature,  or  officer  exercising  judicial  functions, 
a  free  pass  over  the  railroads  or  other  transportation 
company  or  corporation  by  which  he  is  employed. 

§  245.  No  railroad  company  shall  give  or  pay  any 
rebate,  or  a  bonus  in  the  nature  thereof,  directly  or 
indirectly,  or  do  any  act  to  mislead  or  deceive  the 
public  as  to  the  real  rates  charged  or  received  for 
freights  or  passage;  and  any  such  payments  shall  be 
illegal  and  void,  and  these  prohibitions  shall  be  en- 
forced by  suitable  penalties. 

§  246.  No  railroad,  canal  or  transportation  com- 
pany in  existence  at  the  time  of  the  ratification  of  this 
constitution  shall  have  the  benefit  of  any  future  legis- 
lation by  general  or  special  laws,  other  than  in  execu- 
tion of  a  trust  created  by  law  or  by  contract,  except 
on  condition  of  complete  acceptance  of  all  the  pro- 
visions of  this  article.4 

§  8.  California  Constitution — (a)  Distribution  of 
Powers  of  Government. — The  powers  of  the  govern- 
ment of  the  state  of  California  shall  be  divided  into 
three  separate  departments — the  legislative,  execu- 
tive, and  judicial;  and  no  person  charged  with  the  ex- 
ercise of  powers  properly  belonging  to  one  of  these 
departments  shall  exercise  any  functions  appertain- 
ing to  either  of  the  others,  except  as  in  this  constitu- 
tion expressly  directed  or  permitted.5 

§  9.     {b)     Corporation     Control. — Section    1. 

Corporations  may  be  formed  under  general  laws,  but 
shall  not  be  created  by  special  act.  All  laws  now  in 
force  in  this  state  concerning  corporations,  and  all 

*  Ala.  Const.  1901,  art.  XII. 
6  Cal.  Const.  1879,  art.  III. 


10  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  9 

laws  that  may  be  hereafter  passed  pursuant  to  this 
section,  may  be  altered  from  time  to  time  or  repealed. 

Sec.  2.  Dues  from  corporations  shall  be  secured  by 
such  individual  liability  of  the  corporators  and  other 
means  as  may  be  prescribed  by  law. 

Sec.  3.  Each  stockholder  of  a  corporation,  or  joint- 
stock  association,  shall  be  individually  and  personally 
liable  for  such  proportion  of  all  its  debts  and  liabilities 
contracted  or  incurred,  during  the  time  he  was  a 
stockholder,  as  the  amount  of  stock  or  shares  owned 
by  him  bears  to  the  whole  of  the  subscribed  capital 
stock,  or  shares  of  the  corporation  or  association. 
The  directors  or  trustees  of  corporations  and  joint- 
stock  associations  shall  be  jointly  and  severally  liable 
to  the  creditors  and  stockholders  for  all  moneys  em- 
bezzled or  misappropriated  by  the  officers  of  such  cor- 
poration or  joint-stock  association,  during  the  term 
of  office  of  such  director  or  trustee. 

Nothing  in  the  preceding  paragraph  of  this  section 
shall  be  held  to  apply  to  any  exposition  company  or- 
ganized to  promote  and  carry  on  any  international 
exposition  or  world's  fair  within  the  state  of  Califor- 
nia, and  the  liability  of  stockholders  in  any  such  ex- 
position company  shall  be  and  the  same  is  hereby 
limited  to  any  amount  not  exceeding  the  par  value  of 
the  stock  of  said  corporation  subscribed  for  by  such 
stockholders  [Amendment  adopted  November  3,  1908]. 

Sec.  4.  The  term  corporations,  as  used  in  this 
article,  shall  be  construed  to  include  all  associations 
and  joint-stock  companies  having  any  of  the  powers  or 
privileges  of  corporations  not  possessed  by  individuals 
or  partnerships,  and  all  corporations  shall  have  the 
right  to  sue  and  be  subject  to  be  sued,  in  all  courts, 
in  like  cases  as  natural  persons. 

Sec.  5.  The  legislature  shall  have  no  power  to  pass 
any  act  granting  any  charter  for  banking  purposes, 


§  9  CONSTITUTIONAL.  PROVISIONS.  11 

but  corporations  or  associations  may  be  formed  for 
such  purposes  under  general  laws,  and  the  legislature 
shall  provide  for  the  classification  of  cities  and  towns 
by  population  for  the  purpose  of  regulating  the  busi- 
ness of  banking.  No  corporation,  association,  or 
individual  shall  issue  or  put  in  circulation,  as  money, 
anything  but  the  lawful  money  of  the  United  States 
[Amendment  adopted  November  8,  1910]. 

Sec.  6.  All  existing  charters,  grants,  franchises, 
special  or  exclusive  privileges,  under  which  an  actual 
and  bona  fide  organization  shall  not  have  taken  place, 
and  business  been  commenced  in  good  faith,  at  the 
time  of  the  adoption  of  this  constitution,  shall  there- 
after have  no  validity. 

Sec.  7.  The  legislature  shall  not  extend  any  fran- 
chise or  charter,  nor  remit  the  forfeiture  of  any  fran- 
chise or  charter  of  any  quasi-public  corporation  now 
existing  or  which  shall  hereafter  exist  under  the  laws 
of  this  state.  The  term  of  existence  of  any  other  cor- 
poration now  or  hereafter  existing  under  the  laws  of 
this  state,  may  be  extended,  at  any  time  prior  to  the 
expiration  of  its  corporate  existence,  for  a  period  not 
exceeding  fifty  years  from  the  date  of  such  extension, 
by  the  vote  or  written  consent  of  stockholders  repre- 
senting two-thirds  of  its  capital  stock  or  of  two-thirds 
of  the  members  thereof.  A  certificate  of  such  vote  or 
consent  shall  be  signed  and  sworn  to  by  the  president 
and  secretary,  and  by  a  majority  of  the  directors  of 
the  corporation  and  filed  and  certified  in  the  manner 
and  upon  payment  of  fees  required  by  law  for  filing 
and  certifying  articles  of  incorporation,  and  thereupon 
the  term  of  the  corporation  shall  be  extended  for  the 
period  specified  in  such  certificate,  and  such  corpora- 
tion shall  thereafter  pay  all  annual  or  other  fees  re- 
quired by  law  to  be  paid  by  corporations  [Amendment 
adopted  November  3,  1908]. 


12  CALIFORNIA   PUBLIC   UTILITIES   ACT.  §  9 

Sec.  8.  The  exercise  of  the  right  of  eminent  domain 
shall  never  be  so  abridged  or  construed  as  to  prevent 
the  legislature  from  taking  the  property  and  fran- 
chises of  incorporated  companies  and  subjecting  them 
to  public  use  the  same  as  the  property  of  individuals; 
and  the  exercise  of  the  police  power  of  the  state  shall 
never  be  so  abridged  or  construed  as  to  permit  corpo- 
rations to  conduct  their  business  in  such  manner  as 
to  infringe  the  rights  of  individuals  or  the  general 
well-being  of  the  state. 

Sec.  9.  No  corporation  shall  engage  in  any  busi- 
ness other  than  that  expressly  authorized  in  its  charter 
or  the  law  under  which  it  may  have  been  or  may  here- 
after be  organized;  nor  shall  it  hold  for  a  longer 
period  than  five  years  any  real  estate,  except  such  as 
may  be  necessary  for  carrying  on  its  business. 

Sec.  10.  The  legislature  shall  not  pass  any  laws 
permitting  the  leasing  or  alienation  of  any  franchise, 
so  as  to  relieve  the  franchise  or  property  held  there- 
under from  the  liabilities  of  the  lessor  or  grantor, 
lessee  or  grantee,  contracted  or  incurred  in  the  opera- 
tion, use,  or  enjoyment  of  such  franchise,  or  any  of  its 
privileges. 

Sec.  11.  No  corporation  shall  issue  stock  or  bonds, 
except  for  money  paid,  labor  done,  or  property  actu- 
ally received,  and  all  fictitious  increase  of  stock  or 
indebtedness  shall  be  void.  The  stock  and  bonded  in- 
debtedness of  corporations  shall  not  be  increased, 
except  in  pursuance  of  general  law,  nor  without  the 
consent  of  the  persons  holding  the  larger  amount  in 
value  of  the  stock,  at  a  meeting  called  for  that  pur- 
pose, giving  sixty  days'  public  notice,  as  may  be  pro- 
vided by  law. 

Sec.  12.  In  all  elections  for  directors  or  managers 
of  corporations  every  stockholder  shall  have  the  right 
to  vote,  in  person  or  by  proxy,  the  number  of  shares 


§  9  CONSTITUTIONAL  PROVISIONS.  13 

of  stock  owned  by  him,  for  as  many  persons  as  there 
are  directors  or  managers  to  be  elected,  or  to  cumulate 
said  shares  and  give  one  candidate  as  many  votes  as 
the  number  of  directors  multiplied  by  the  number  of 
his  shares  of  stock  shall  equal,  or  to  distribute  them, 
on  the  same  principle,  among  as  many  candidates  as 
he  shall  think  fit;  and  such  directors  or  managers  shall 
not  be  elected  in  any  other  manner,  except  that  mem- 
bers of  co-operative  societies  formed  for  agricultural, 
mercantile,  and  manufacturing  purposes  may  vote  on 
all  questions  affecting  such  societies  in  manner  pre- 
scribed by  law. 

Sec.  13.  The  state  shall  not,  in  any  manner,  loan 
its  credit,  nor  shall  it  subscribe  to  or  be  interested  in 
the  stock  of  any  company,  association,  or  corporation. 

Sec.  14.  Every  corporation  other  than  religious, 
educational,  or  benevolent,  organized  or  doing  busi- 
ness in  this  state,  shall  have  and  maintain  an  office  or 
place  in  this  state  for  the  transaction  of  its  business, 
where  transfers  of  stock  shall  be  made,  and  in  which 
shall  be  kept,  for  inspection  by  every  person  having 
an  interest  therein,  and  legislative  committees,  books 
in  which  shall  be  recorded  the  amount  of  capital  stock 
subscribed,  and  by  whom;  the  names  of  the  owners  of 
its  stock,  and  the  amounts  owned  by  them,  respec- 
tively; the  amount  of  stock  paid  in,  and  by  whom;  the 
transfers  of  stock;  the  amount  of  its  assets  and  lia- 
bilities, and  the  names  and  places  of  residence  of  its 
officers. 

Sec.  15.  No  corporation  organized  outside  the  lim- 
its of  this  state  shall  be  allowed  to  transact  business 
within  this  state  on  more  favorable  conditions  than 
are  prescribed  by  law  to  similar  corporations  organ- 
ized under  the  laws  of  this  state. 

Sec.  16.  A  corporation  or  association  may  be  sued 
in  the  county  where  the  contract  is  made  or  is  to  be 


14  CALIFORNIA   PUBLIC   UTILITIES   ACT.  §  9 

performed,  or  where  the  obligation  or  liability  arises 
or  the  breach  occurs;  or  in  the  county  where  the  prin- 
cipal place  of  business  of  such  corporation  is  situated, 
subject  to  the  power  of  the  court  to  change  the  place 
of  trial,  as  in  other  cases. 

Sec.  17.  All  railroad,  canal,  and  other  transporta- 
tion companies  are  declared  to  be  common  carriers, 
and  subject  to  legislative  control.  Any  association 
or  corporation,  organized  for  the  purpose  under  the 
laws  of  this  state,  shall  have  the  right  to  connect  at 
the  state  line  with  railroads  of  other  states.  Every 
railroad  company  shall  have  the  right  with  its  road 
to  intersect,  connect  with,  or  cross  any  other  railroad, 
and  shall  receive  and  transport  each  the  other's  pas-v 
sengers,  tonnage,  and  cars,  without  delay  or  discrim- 
ination. 

Sec.  18.  No  president,  director,  officer,  agent,  or 
employee  of  any  railroad  or  canal  company  shall  be 
interested,  directly  or  indirectly,  in  the  furnishing  of 
material  or  supplies  to  such  company,  nor  in  the  busi- 
ness of  transportation  as  a  common  carrier  of  freight 
or  passengers  over  the  works  owned,  leased,  controlled, 
or  worked  by  such  company,  except  such  interest  in 
the  business  of  transportation  as  lawfully  flows  from 
the  ownership  of  stock  therein. 

Sec.  19.  No  railroad  or  other  transportation  com- 
pany shall  grant  free  passes,  or  passes  or  tickets  at  a 
discount,  to  any  person  holding  any  office  of  honor, 
trust,  or  profit  in  this  state;  and  the  acceptance  of  any 
such  pass  or  ticket  by  a  member  of  the  legislature,  or 
any  public  officer,  other  than  Railroad  Commissioner, 
shall  work  a  forfeiture  of  his  office. 

Sec.  20.  No  railroad  or  other  transportation  com- 
pany shall  raise  any  rate  of  charge  for  the  transporta- 
tion of  freight  or  passengers  or  any  charge  connected 
therewith   or   incidental    thereto,  under    any  circum- 


§  9  CONSTITUTIONAL   PROVISIONS.  15 

stances  whatsoever,  except  upon  a  showing  before  the 
Eailroad  Commission  provided  for  in  this  constitution, 
that  such  increase  is  justified,  and  the  decision  of  the 
said  Commission  upon  the  showing  so  made  shall  not 
be  subject  to  review  by  any  court  except  upon  the 
question  whether  such  decision  of  the  Commission  will 
result  in  confiscation  of  property  [Amendment  adopted 
October  10,  1911]. 

Sec.  21.  No  discrimination  in  charges  or  facilities 
for  transportation  shall  be  made  by  any  railroad  or 
other  transportation  company  between  places  or  per- 
sons, or  in  the  facilities  for  the  transportation  of  the 
same  classes  of  freight  or  passengers  within  this  state. 
It  shall  be  unlawful  for  any  railroad  or  other  trans- 
portation company  to  charge  or  receive  any  greater 
compensation  in  the  aggregate  for  the  transportation 
of  passengers  or  of  like  kind  of  property  for  a  shorter 
than  for  a  longer  distance  over  the  same  line  or  route 
in  the  same  direction,  the  shorter  being  included 
within  the  longer  distance,  or  to  charge  any  greater 
compensation  as  a  through  rate  than  the  aggregate 
of  the  intermediate  rates.  Provided,  however,  that 
upon  application  to  the  Railroad  Commission  provided 
for  in  this  constitution  such  company  may,  in  special 
cases,  after  investigation,  be  authorized  by  such  Com- 
mission to  charge  less  for  longer  than  for  shorter  dis- 
tances for  the  transportation  of  persons  or  property 
and  the  Railroad  Commission  may  from  time  to  time 
prescribe  the  extent  to  which  such  company  may  be 
relieved  from  the  prohibition  to  charge  less  for  the 
longer  than  for  the  shorter  haul.  The  Railroad  Com- 
mission shall  have  power  to  authorize  the  issuance  of 
excursion  and  commutation  tickets  at  special  rates. 
Nothing  herein  contained  shall  be  construed  to  prevent 
the  Railroad  Commission  from  ordering  and  com- 
pelling any  railroad  or  other  transportation  company 


16  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  10 

to  make  reparation  to  any  shipper  on  account  of  the 
rates  charged  to  said  shipper  being  excessive  or  dis- 
criminatory, provided  no  discrimination  will  result 
from  such  reparation  [Amendment  adopted  October 
10,  1911]. 6 

§  10.    (c)     Railroad  Commission.  —  Sec.    22. 

There  is  hereby  created  a  Kailroad  Commission  which 
shall  consist  of  five  members  and  which  shall  be  known 
as  the  Railroad  Commission  of  the  state  of  California. 
The  Commission  shall  be  appointed  by  the  governor 
from  the  state  at  large;  provided,  that  the  legislature, 
in  its  discretion,  may  divide  the  state  into  districts  for 
the  purpose  of  such  appointments,  said  districts  to  be  N 
as  nearly  equal  in  population  as  practicable;  and  pro- 
vided further  that  the  three  commissioners  in  office 
at  the  time  this  section  takes  effect  shall  serve  out 
the  term  for  which  they  were  elected,  and  that  two 
additional  commissioners  shall  be  appointed  by  the 
governor  immediately  after  the  adoption  of  this  sec- 
tion, to  hold  office  during  the  same  term.  Upon  the 
expiration  of  said  term,  the  term  of  office  of  each  com- 
missioner thereafter  shall  be  six  years,  except  the 
commissioners  first  appointed  hereunder  after  such 
expiration,  one  of  whom  shall  be  appointed  to  hold 
office  until  January  1,  1917,  two  until  January  1,  1919, 
and  two  until  January  1,  1921.  Whenever  a  vacancy 
in  the  office  of  commissioner  shall  occur,  the  governor 
shall  forthwith  appoint  a  qualified  person  to  fill  the 
same  for  the  unexpired  term.  Commissioners  ap- 
pointed for  regular  terms  shall,  at  the  beginning  of 
the  term  for  which  they  are  appointed,  and  those  ap- 
pointed to  fill  vacancies,  shall,  immediately  upon  their 
appointment,  enter  upon  the  duties  of  their  offices. 
The  legislature  shall  fix  the  salaries  of   the  commis- 

•  Cal.  Const.  1879,  art.  XII. 


§  10  CONSTITUTIONAL  PROVISIONS.  17 

6ioners,  but  pending  such  action  the  salaries  of  the 
commissioners,  their  officers  and  employees  shall  re- 
main as  now  fixed  by  law.  The  legislature  shall  have 
the  power,  by  a  two-thirds  vote  of  all  members  elected 
to  each  house,  to  remove  any  one  or  more  of  said  com- 
missioners from  office  for  dereliction  of  duty  or  cor- 
ruption or  incompetency.  All  of  said  commissioners 
shall  be  qualified  electors  of  this  state,  and  no  person 
in  the  employ  of  or  holding  any  official  relation  to  any 
person,  firm  or  corporation,  which  said  person,  firm 
or  corporation  is  subject  to  regulation  by  said  Rail- 
road Commission  and  no  person  owning  stock  or  bonds 
of  any  such  corporation  or  who  is  in  any  manner 
pecuniarily  interested  therein,  shall  be  appointed  to 
or  hold  the  office  of  Railroad  Commissioner.  No 
vacancy  in  the  Commission  shall  impair  the  right  of 
the  remaining  commissioners  to  exercise  all  the  powers 
of  the  Commission.  The  act  of  a  majority  of  the  com- 
missioners when  in  session  as  a  board  shall  be  deemed 
to  be  the  act  of  the  Commission;  but  any  investigation, 
inquiry  or  hearing  which  the  Commission  has  power 
to  undertake  or  to  hold  may  be  undertaken  or  held  by 
or  before  any  commissioner  designated  for  the  purpose 
by  the  Commission,  and  every  order  made  by  a  com- 
missioner so  designated,  pursuant  to  such  inquiry,  in- 
vestigation or  hearing,  when  approved  or  confirmed 
by  the  Commission  ordered  filed  in  its  office,  shall  be 
deemed  to  be  the  order  of  the  Commission. 

Said  Commission  shall  have  the  power  to  establish 
rates  of  charges  for  the  transportation  of  passengers 
and  freight  by  railroads  and  other  transportation  com- 
panies, and  no  railroad  or  other  transportation  com- 
pany shall  charge  or  demand  or  collect  or  receive  a 
greater  or  less  or  different  compensation  for  such 
transportation  of  passengers  or  freight,  or  for  any 
service  in  connection  therewith,  between  the  points 
a 


13  CALIFORNIA   PUBLIC   UTILITIES   ACT.  §  10 

named  in  any  tariff  of  rates,  established  by  said  Com- 
mission, than  the  rates,  fares  and  charges  which  are 
specified  in  such  tariff.  The  Commission  shall  have 
the  further  power  to  examine  books,  records  and 
papers  of  all  railroad  and  other  transportation  com- 
panies; to  hear  and  determine  complaints  against  rail- 
road and  other  transportation  companies;  to  issue 
subpoenas  and  all  necessary  process  and  send  for  per- 
sons and  papers;  and  the  Commission  and  each  of  the 
commissioners  shall  have  the  power  to  administer 
oaths,  take  testimony  and  punish  for  contempt  in  the 
same  manner  and  to  the  same  extent  as  courts  of 
record;  the  Commission  may  prescribe  a  uniform 
system  of  accounts  to  be  kept  by  all  railroad  and  other  v 
transportation  companies. 

No  provision  of  this  constitution  shall  be  construed 
as  a  limitation  upon  the  authority  of  the  legislature  to 
confer  upon  the  Railroad  Commission  additional  pow- 
ers of  the  same  kind  or  different  from  those  conferred 
herein  which  are  not  inconsistent  with  the  powers 
conferred  upon  the  Railroad  Commission  in  this  con- 
stitution, and  the  authority  of  the  legislature  to  confer 
such  additional  powers  is  expressly  declared  to  be 
plenary  and  unlimited  by  any  provision  of  this  con- 
stitution. 

The  provisions  of  this  section  shall  not  be  construed 
to  repeal  in  whole  or  in  part  any  existing  law  not  in- 
consistent herewith,  and  the  "Railroad  Commission 
Act"  of  this  state  approved  February  10,  1911,  shall 
be  construed  with  reference  to  this  constitutional  pro- 
vision and  any  other  constitutional  provision  becom- 
ing operative  concurrently  herewith.  And  the  said 
act  shall  have  the  same  force  and  effect  as  if  the  same 
had  been  passed  after  the  adoption  of  this  provision 
of  the  constitution  and  of  all  other  provisions  adopted 


§  10  CONSTITUTIONAL   PROVISIONS.  19 

concurrently  herewith,  except  that  the  three  commis- 
sioners referred  to  in  said  act  shall  be  held  and  con- 
strued to  be  the  five  commissioners  provided  for 
herein  [Amendment  adopted  October  10,  1911]. 

Sec.  23.  Every  private  corporation,  and  every  in- 
dividual or  association  of  individuals,  owning,  oper- 
ating, managing,  or  controlling  any  commercial  rail- 
road, interurban  railroad,  street  railroad,  canal,  pipe- 
line, plant,  or  equipment,  or  any  part  of  such  railroad, 
canal,  pipe-line,  plant  or  equipment  within  this  state, 
for  the  transportation  or  conveyance  of  passengers,  or 
express  matter,  or  freight  of  any  kind,  including  crude 
oil,  or  for  the  transmission  of  telephone  or  telegraph 
messages,  or  for  the  production,  generation,  transmis- 
sion, delivery  or  furnishing  of  heat,  light,  water  or 
power  or  for  the  furnishing  of  storage  or  wharfage 
facilities,  either  directly  or  indirectly,  to  or  for  the 
public,  and  every  common  carrier,  is  hereby  declared 
to  be  a  public  utility  subject  to  such  control  and  regu- 
lation by  the  Railroad  Commission  as  may  be  provided 
by  the  legislature,  and  every  class  of  private  corpora- 
tions, individuals,  or  associations  of  individuals  here- 
after declared  by  the  legislature  to  be  public  utilities 
shall  likewise  be  subject  to  such  control  and  regula- 
tion. The  Railroad  Commission  shall  have  and  exer- 
cise such  power  and  jurisdiction  to  supervise  and  reg- 
ulate public  utilities,  in  the  state  of  California,  and 
to  fix  the  rates  to  be  charged  for  commodities  fur- 
nished, or  services  rendered  by  public  utilities  as  shall 
be  conferred  upon  it  by  the  legislature,  and  the  right 
of  the  legislature  to  confer  powers  upon  the  Railroad 
Commission  respecting  public  utilities  is  hereby  de- 
clared to  be  plenary  and  to  be  unlimited  by  any  pro- 
vision of  this  constitution. 


20  CALIFORNIA   PUBLIC   UTILITIES   ACT.  §  10 

From  and  after  the  passage  by  the  legislature  of 
laws  conferring  powers  upon  the  Railroad  Commission 
respecting  public  utilities,  all  powers  respecting  such 
public  utilities  vested    in  boards  of    supervisors,  or 
municipal  councils,  or  other  governing  bodies  of  the 
several  counties,  cities  and  counties,  cities  and  towns, 
in  this  state,  or  in  any  Commission  created  by  law  and 
existing  at  the  time  of  the  passage  of  such  laws,  shall 
cease  so  far  as  such  powers  shall  conflict  with  the 
powers  so  conferred  upon  the  Railroad  Commission; 
provided,  however,  that  this  section  shall  not  affect 
such  powers  of  control  over  any  public  utility  vested 
in  any  city  and  county,  or  incorporated  city  or  town 
as,  at  an  election  to  be  held  pursuant  to  laws  to  be 
passed  hereafter  by  the  legislature,  a  majority  of  the 
qualified  electors  voting    thereon  of    such    city  and 
county,  or  incorporated    city  or  town,  shall    vote  to 
retain,  and  until  such  election  such  powers  shall  con- 
tinue unimpaired;  but  if  the  vote  so  taken  shall  not 
favor  the  continuation  of  such  powers  they  shall  there 
after  vest  in  the  Railroad  Commission  as  provided  by 
law;  and  provided,  further,  that  where  any  such  city 
and  county  or  incorporated  city  or  town  shall  have 
elected    to    continue    any  powers    respecting    public 
utilities,  it  may,  by  vote  of  a  majority  of  its  qualified 
electors    voting    thereon,  thereafter    surrender    such 
powers  to  the  Railroad  Commission  in  the  manner  to 
be  prescribed  by  the  legislature;  or  if  such  municipal 
corporation  shall  have  surrendered  any  powers  to  the 
Railroad  Commission,  it  may,  by  like  vote,  thereafter 
reinvest  itself  with  such  power.     Nothing  in  this  sec- 
tion shall  be  construed  as  a  limitation  upon  any  power 
conferred  upon  the  Railroad  Commission  by  any  pro- 
vision of    this  constitution    now  existing  or  adopted 
concurrently  herewith  [Amendment  adopted  October 
10, 1911]. 


§§  11,  12  CONSTITUTIONAL   PROVISIONS.  21 

Sec.  24.  The  legislature  shall  pass  all  laws  neces- 
sary for  the  enforcement  of  the  provisions  of  this 
article.7 

§  11.    Georgia  Constitution — (a)     Distribution    of 

Powers  of  Government. — Par.  XXIII.-  -The  legis- 
lative, judicial  and  executive  powers  shall  forever 
remain  separate  and  distinct,  and  no  person  discharg- 
ing the  duty  of  one,  shall,  at  the  same  time,  exercise 
the  functions  of  either  of  the  others,  except  as  herein 
provided.8 

§  12.    (b)     Corporation  Control. — Par.  I.     The 

powers  and  authority  of  regulating  railroad  freights 
and  passenger  traffic,  [to]  prevent  unjust  discrimina- 
tion, und  require  reasonable  and  just  rates  of  freight 
and  passenger  tariff,  are  hereby  conferred  upon  the 
General  Assembly  whose  duty  it  shall  be  to  pass  laws 
from  time  to  time,  to  regulate  freight  and  passenger 
tariffs,  to  prohibit  unjust  discrimination  on  [in]  the 
fares  of  this  state,  and  to  prohibit  said  road  from  charg- 

T  Cal.   Const.    1879,   as   amended   1911. 

"Plenary  power"  is  given  to  the  Railroad  Commission  by  Constitution, 
§  23.  But  this  power  given  by  the  constitution  is  limited  by  the  act 
of  the  legislature  known  as  the  Public  Utilities  Act,  in  that  all  acts 
of  the  Railroad  Commission  are  made  reviewable  by  the  courts.  See 
post,  c.  9. 

The  plenary  power  given  to  the  Railroad  Commission  does  not  enable 
it  to  deal  with  interstate  commerce.  Congress  has  plenary  power  over 
interstate  commerce,  and  incidentally  thereto  it  may  regulate  the  per- 
sons, companies,  and  corporations  engaged  in  interstate  business,  and 
may  prescribe  the  number  of  consecutive  hours  an  employee  of  a 
carrier  engaged  in  interstate  business  may  be  required  to  remain  on 
duty,  and  where  Congress  does  so  legislate,  its  act  supersedes  and 
displaces  any  and  all  state  legislation  and  all  regulations  by  the  Rail- 
road Commission  on  the  subject.  See  State  ex  rel.  Atkinson  v.  Northern 
Pac.  R.  Co.,  53  Wash.  673,  102  Pac.  876. 

The  state  Railroad  Commission  cannot  make  any  regulations  or  do 
any  act  that  interferes  with  interstate  commerce.     See  post,  c.  3,  §  65. 

«  Ga.    Const.    1877,    art.    I,  §  1. 


22  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §§  13-16 

ing  other  than  just  and  reasonable  rates,  and  enforce 
the  same  by  adequate  penalties.9 

§  13.  Illinois  Constitution—  (a)  Distribution  of 
Poivers  of  Government. — The  powers  of  the  govern- 
ment of  this  state  are  divided  into  three  distinct  de- 
partments— the  legislative,  executive  and  judicial;  and 
no  person,  or  collection  of  persons,  being  one  of  these 
departments,  shall  exercise  any  power  properly  be- 
longing to  either  of  the  others,  except  as  herein  ex- 
pressly directed  and  permitted.10 

§  14.    (b)     Corporation  Control— •§  15.    The 

General  Assembly  shall  pass  laws  to  correct  abuses  ^ 
and  prevent  unjust  discrimination  and  extortion  in 
the  rates  of  freight  and  passengers  on  the  different 
railroads  of  this  state,  and  enforce  such  laws  by  ade- 
quate penalties,  to  the  extent,  if  necessary  for  that 
purpose,  of  forfeiture  of  their  property  and  franchise.11 

§  15.  Iowa  Constitution — (a)  Distribution  of 
Powers  of  Government. — §  1.  The  powers  of  the 
government  of  Iowa  shall  be  divided  into  three  sep- 
arate departments:  the  legislative,  the  executive,  and 
the  judicial;  and  no  person  charged  with  the  exercise 
of  powers  properly  belonging  to  one  of  these  depart- 
ments shall  exercise  any  functions  appertaining  to 
either  of  the  others,  except  in  cases  hereinafter  ex- 
pressly directed  and  permitted.12 

§  16.     {b)     Corporation  Control. — There  is  no 

provision  in  the  constitution  relative  to  the  control  of 
railroads  and  other  public  utilities. 

9  Ga.   Const.,   art.   IV,  §  2. 

10  111.  Const.  1870,  art.  III. 
ii  HI.  Const.  1870,  art.  XI. 
12  Iowa  Const.  1857,  art.  IIL 


§§  17-20  CONSTITUTIONAL   PROVISIONS.  23 

§  17.     Kansas    Constitution — (a)     Distribution    of 

Powers  of  Government. — The  Territorial  Government 
Act  of  1854,  section  6,  provides  for  three  departments 
of  government,  to  wit:  the  Legislative  Department,  the 
Executive  Department  and  the  Judicial  Department; 
The  constitutions  of  1855,  1857  and  1858  especially 
retaining  this  division  of  powers  in  article  III  of  these 
respective  constitutions.  The  present  constitution,  of 
1859,  preserves  this  distribution  of  powers  without 
specific  designation  by  the  provisions  in  article  I  as  to 
the  Executive  Department;  in  article  II  as  to  the  Legis- 
lative Department;  and  in  article  III  as  to  the  Judicial 
Department.13 

§  18.     (b)     Corporation     Control. — There    is 

no  provision  in  the  constitution  relative  to  the  control 
of  railroads  and  other  public  utilities. 

§19.  Louisiana  Constitution — (a)  Distribution  of 
Powers  of  Government. — The  powers  of  the  govern- 
ment of  the  state  of  Louisiana  shall  be  divided  into 
three  distinct  departments,  each  of  them  to  be  confided 
to  a  separate  body  of  magistrates,  to  wit:  those  which 
are  legislative,  to  one,  those  which  are  executive  to 
another,  and  those  which  are  judicial  to  another.14 

No  one  of  these  departments,  nor  any  person  or  col- 
lection of  persons  holding  office  in  one  of  them  shall 
exercise  power  properly  belonging  to  either  of  the 
others,  except  in  the  instances  hereinafter  expressly 
directed  and  permitted.15 

§  20.    (b)     Corporation   Control.— The   exor- 
cise of  the  police  power  of  the  state 'shall    never  be 
abbreviated  nor  so  construed  as  to  permit  corpora- 
is  Kan.  Const.  1S59. 
14  La.  Const.  1898,  art.  XVI. 
is  La.  Const.  1898,  art.  XVII. 


24  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  21 

tions  to  conduct  their  business  in  such  a  manner  as 
to  infringe  the  equal  rights  of  individuals  or  the  gen- 
eral well-being  of  the  state.16 

§  21.    (c)     Railroad  Commission.17 — Art.  283. 

A  Railroad,  Express,  Telephone,  Telegraph,  Steam- 
boat, and  Other  Water  Craft,  and  Sleeping-car  Com- 
mission, is  hereby  created;  to  be  composed  of  three 
members,  to  be  held  from  the  districts  hereinafter 
named,  at  the  time  fixed  for  the  congressional  election 
in  1898.  Of  the  three  commissioners  elected  in  1898, 
one  shall  serve  two  years,  one  shall  serve  four  years, 
and  one  shall  serve  six  years,  the  term  each  is  to  serve 
to  be  determined  by  lot;  thereafter  the  commissioners 
from  each  district  shall  be  elected  for  a  term  of  six 
years.  They  shall  be  known  as  the  Railroad  Com- 
mission of  Louisiana.  The  Commission  shall  meet 
and  open  an  office  and  have  its  domicile  at  Baton 
Rouge,  and  shall  elect  one  of  their  number  chairman, 
and  may  appoint  a  secretary  at  a  salary  of  fifteen 
hundred  dollars  per  annum,  and  may  meet  and  hold 
regular  or  special  hearings  at  such  other  places  as  they 
may  find  necessary.  No  member  of  this  convention 
shall  be  eligible  to  election  or  appointment  as  a  mem- 
ber of  said  Commission  prior  to  1908  (Amendment 
1900). 

Art.  284.  The  powers  and  authority  is  hereby  fixed 
in  the  Commission,  and  it  is  hereby  made  its  duty,  to 
adopt,  change  or  make  reasonable  and  just  rates, 
charges  and  regulations,  to  govern  and  regulate  rail- 
road, steamboat  and  other  water  craft,  and  sleeping- 
car,  freight  and  passenger  tariffs  and  services,  express 
rates,  and  telephone  and  telegraph  charges,  to  cor- 
rect abuses,  and  prevent  unjust  discrimination  and 
extortion  in  the  rates  of  the  same,  on  the  different  rail- 

16  La.  Const.  1898,  art.  263. 

17  La.  Const.  1898,  as  amended  in  1900,  1907  and  1908. 


§  21  CONSTITUTIONAL   PROVISIONS.  25 

roads,  steamboat  and  other  water  craft,  sleeping-car, 
express,  telephone  and  telegraph  lines  in  this  state, 
and  to  prevent  such  companies  from  charging  any- 
greater  compensation  in  the  aggregate  for  the  like 
kind  of  property  or  passengers,  or  messages,  for  a 
shorter  than  a  longer  distance  over  the  same  line,  un- 
less authorized  by  the  Commission  to  do  so  in  special 
cases;  to  require  all  railroads  to  build  and  maintain 
suitable  depots,  switches  and  appurtenances,  where- 
after the  same  are  reasonably  necessary  at  stations, 
and  to  inspect  railroads  and  to  require  them  to  keep 
their  tracks  and  bridges  in  a  safe  condition,  and  to  fix 
and  adjust  rates  between  branches  or  short  lines  and 
the  great  trunk  lines  with  which  they  connect,  and  to 
enforce  the  same  by  having  the  penalties  hereby  pre- 
scribed inflicted  through  the  proper  courts  having  ju- 
risdiction. 

The  Commission  shall  have  power  to  adopt  and  en- 
force such  reasonable  rules,  regulations,  and  modes  of 
procedure-  as  it  may  deem  proper  for  the  discharge  of 
its  duties,  and  to  hear  and  determine  complaints  that 
may  be  made  against  the  classifications  or  rates  it  may 
establish,  and  to  regulate  the  mode  and  manner  of  all 
investigations  and  hearings  of  railroad  companies  and 
other  parties  before  it,  in  the  establishment  of  rates, 
orders,  charges,  and  other  acts,  required  or  authorized 
by  these  provisions.  They  shall  have  power  to  sum- 
mon and  compel  the  attendance  of  witnesses,  to  swear 
witnesses  and  to  compel  the  production  of  books  and 
papers,  to  take  testimony  under  commission,  and  to 
punish  for  contempt  as  fully  as  is  provided  by  law, 
for  district  courts  (Amendment  1900). 

Art.  285.  If  any  railroad,  express,  telephone,  tele- 
graph, steamboat  or  other  water  craft,  sleeping-car 
company,  or  other  party  in  interest,  be  dissatisfied 
with  the  decision  or  fixing  of  any  rate,  classification, 


26  CALIFORNIA   PUBLIC   UTILITIES   ACT.  §  21 

rule,  charge,  order,  act  or  regulation,  adopted  by  the 
Commission,  such  party  may  file  a  petition  setting 
forth  the  cause  or  causes  of  objection  to  such  decision, 
act,  rule,  rate,  charge,  classification,  or  order,  or  to 
either  or  all  of  them  in  a  court  of  competent  jurisdic- 
tion at  the  domicile  of  the  Commission,  against  said 
Commission  as  defendant,  and  either  party  to  said 
action  may  appeal  the  case  to  the  supreme  court  of 
the  state,  without  regard  to  the  amount  involved  and 
all  such  cases,  both  in  the  trial  and  appellate  courts, 
shall  be  tried  summarily,  and  by  preference  over  all 
other  cases.  Such  cases  may  be  tried  in  the  court  of 
the  first  instance,  either  in  chambers  or  at  term  time; 
provided,  all  such  appeals  shall  be  returned  to  the  su- 
preme court  within  ten  days  after  the  decision  of  the 
lower  court;  and  where  the  Commission  appeals,  no 
bond  shall  be  required.  No  bond  shall  be  required  of 
said  Commission  in  any  case,  nor  shall  advance  costs 
or  securities  for  costs  be  required  of  the  Commission 
(Amendment  1900). 

Art.  286.  If  any  railroad,  express,  telephone,  tele- 
graph, steamboat,  or  other  water  craft,  or  sleeping-car 
company,  subject  hereto,  directly  or  indirectly,  or  by 
any  special  rate,  rebate  or  other  device,  shall  inten- 
tionally charge,  demand,  collect  or  receive  from  any 
person,  firm  or  corporation,  a  greater  or  less  compen- 
sation for  any  service  rendered  by  it,  than  it  charges, 
demands,  or  receives  from  any  other  person,  firm  or 
corporation,  for  doing  like  or  contemporaneous  ser- 
vice, or  shall  violate  any  of  the  rates,  charges,  orders, 
rules  or  decisions  of  said  Commission,  such  railroad, 
steamboat,  or  other  water  craft,  express,  telegraph, 
telephone,  or  sleeping-car  company,  shall  forfeit  and 
pay  to  the  state  not  less  than  one  hundred  dollars,  nor 
more  than  five  thousand  dollars  to  be  recovered  before 
any  court  of  competent  jurisdiction,  at  the  suit  of  the 
state,  at  the  domicile  of  the  Commission. 


§  21  CONSTITUTIONAL  PROVISIONS.  27 

Provided,  that  every  order  or  decision  of  the  Com- 
mission, fixing  and  establishing  a  rate  or  charge  for 
the  transportation  of  passengers  or  freight,  or  for  the 
transmission  of  messages  or  conversation  by  telephone 
or  telegraph,  within  the  state,  shall  go  into  effect  at 
such  time  as  may  be  fixed  by  the  Commission,  and 
shall  remain  in  effect  and  be  complied  with  unless  and 
until  set  aside  by  the  Commission,  or  by  a  final  judg- 
ement of  a  court  of  competent  jurisdiction,  rendered  on 
final  trial  in  a  suit  to  set  aside  and  annul  the  same. 

Provided,  that  whenever  any  rate,  charge,  rule, 
regulation,  order  or  decision,  of  the  Commission,  is 
contested  in  court,  as  provided  by  this  constitution, 
or  by  any  amendment  thereto,  the  same  is  maintained 
on  final  trial,  by  a  court  of  competent  jurisdiction,  the 
railroad,  express,  telephone,  telegraph,  steamboat  or 
other  water  craft,  or  sleeping-car  company,  or  corpo- 
ration, contesting  the  same,  shall  forfeit  and  pay,  to 
the  state  of  Louisiana,  the  sum  of  not  less  than  ten 
dollars  nor  more  than  fifty  dollars  per  day,  for  each 
day  that  the  putting  into  effect  and  operation  of  the 
rate,  order,  charge,  rule,  regulation,  or  decision,  of  the 
Commission  may  have  been  suspended  by  such  suit, 
to  be  found  and  adjudged,  by  the  court  in  which  suit 
may  be  brought,  and  in  all  such  cases,  the  said  court 
shall,  in  its  judgment,  maintaining  the  said  rate, 
charge,  rule,  regulation,  order,  or  decision,  enter  up  a 
decree  and  judgment  against  the  plaintiff  therein,  con- 
demning such  plaintiff  to  pay  to  the  state  of  Louisiana 
the  amount  of  the  said  penalty  or  forfeiture  so  found 
and  adjudged  by  it,  which  amount  after  deducting 
therefrom  the  attorney's  fees  provided  by  article  288 
of  this  constitution,  shall,  when  collected,  be  paid  into 
the  state  treasury  for  account  of  the  general  school 
fund  of  the  state. 

The  power  and  authority  of  the  Commission  shall 
affect  and  include  not  only  the  transportation  of  pas- 


28  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  21 

sengers,  freight,  express  matter,  and  telegraph  and 
telephone  messages,  between  points  within  the  state, 
and  the  use  of  such  instruments  within  the  state,  but 
shall  also  affect  and  include  all  matters  and  things 
connected  with  and  concerning  the  service  to  be  given 
by  railroads,  express,  telephone,  telegraph,  steamboat 
and  other  water  craft,  and  sleeping-car  companies  and 
corporations  in  the  state,  and  their  operation  within 
the  state  (Amendment  1908). 

Art.  287.  Until  otherwise  provided  by  law,  the 
members  of  the  Commission  shall  each  receive  a  salary 
of  three  thousand  dollars  per  annum,  payable  monthly 
on  his  own  warrant  and  their  actual  traveling  ex- 
penses and  those  of  their  secretaries;  which  expenses, 
and  the  salaries  of  the  latter,  shall  be  paid  on  the  war- 
rant of  the  chairman  of  the  Commission  on  a  sworn 
statement  of  their  correctness. 

Nothing  herein  shall  prevent  the  railroad,  express, 
telegraph,  telephone,  and  steamboat  or  other  water 
craft,  or  other  companies,  from  serving  free  of  cost, 
or  at  reduced  rates,  the  state  or  any  city,  parish,  or 
town  government,  or  any  charitable  purpose,  or  any 
fair  or  exposition,  or  any  destitute  or  indigent  person 
or  the  issuance  of  mileage  or  excursion  tickets;  nor  to 
prevent  railroads,  steamboats  or  other  water  craft 
from  giving  free  transportation  to  ministers  of  re- 
ligion or  inmates  of  hospitals,  or  to  railroad  officers, 
agents,  employees,  attorneys,  stockholders,  or  direct- 
ors, unless  otherwise  provided  by  this  constitution 
(Amendment  1900). 

Art.  288.  The  General  Assembly  may  add  to  or  en- 
large the  powers  and  duties  of  said  Commission,  or 
confer  other  powers  and  duties  on  them.  They  may 
also  provide  additional  clerical  or  other  assistants 
that  may  be  deemed  necessary  for  the  discharge  of 
the  duties  of  said  Commission,  and  may  add  other 


§§  22-24  CONSTITUTIONAL   PROVISIONS.  29 

penalties,  to  make  the  work  of  said  Commission  effec- 
tive. It  shall  be  the  duty  of  the  attorney  general,  and 
the  various  district  attorneys  to  aid  said  Commission 
in  all  legal  matters,  for  which  they  shall  receive  not 
exceeding  twenty-five  per  cent  of  all  fines  and  for- 
feitures collected  by  them;  provided  the  Commission 
may  employ  other  attorneys  in  lieu  of  the  official  on 
like  terms. 

No  person  in  the  service  of  or  attorney  for,  any  rail- 
road, express,  telephone,  telegraph,  steamboat  or  other 
water  craft,  sleeping-car  company  or  corporation,  or 
pecuniary  interest  in  such  company  or  corporation, 
shall  hold  the  office  of  Commissioner. 

The  fines  collected,  after  paying  the  attorney's  fees 
and  costs  of  suits,  in  which  the  Commission  may  be 
cast  for  costs,  shall  be  paid  into  the  state  treasury 
(Amendment  1907). 

§  22.  Minnesota  Constitution — (a)  Distribution  of 
Powers  of  Government. — §  1.  The  powers  of  govern- 
ment shall  be  divided  into  three  distinct  depart- 
ments— legislative,  executive  and  judicial;  and  no 
person  or  persons  belonging  to  or  constituting  one  of 
these  departments  shall  exercise  any  of  the  powers 
properly  belonging  to  either  of  the  others,  except  in 
the  instances  expressly  provided  in  this  constitution.13 

§  23.    (b)     Corporation    Control. — There    is 

no  provision  in  the  constitution  relative  to  the  control 
of  railroads  and  other  public  utilities. 

§  24.  Mississippi  Constitution — (a)  Distribution 
of  Powers  of  Government.— §  1.  The  powers  of  the 
government  of  the  state  of  Mississippi  shall  be  divided 
into  three  distinct  departments,  and  each  of  them  con- 
fided to  a  separate  magistracy,  to  wit:  Those  which 

i«  Minn.    Const.    1857,   art.   III. 


30  CALIFORNIA   PUBLIC   UTILITIES   ACT.  §  25 

are  legislative,  to  one;  those  which  are  judicial,  to 
another;  and  those  which  are  executive,  to  another. 

§  2.  No  person  or  collection  of  persons,  being  one, 
or  belonging  to  one,  of  these  departments,  shall  exer- 
cise any  power  properly  belonging  to  either  of  the 
others.  The  acceptance  of  an  office  in  either  of  said 
departments  shall,  of  itself,  and  at  once,  vacate  any 
and  all  offices  held  by  the  person  so  accepting  in  either 
of  the  other  departments.19 

§  25.    (b)    Corporation  Control— %  186.    The 

legislature  shall  pass  laws  to  prevent  abuses,  unjust 
discrimination  and  extortion  in  all  charges  of  express, 
telephone,  sleeping-car,  telegraph  and  railroad  com- 
panies, and  shall  enact  laws  for  the  supervision  of 
railroads,  express,  telephone,  telegraph,  sleeping-car 
companies  and  other  common  carriers  in  this  state,  by 
Commission  or  otherwise,  and  shall  provide  adequate 
penalties,  to  the  extent,  if  necessary  for  that  purpose, 
of  forfeiture  of  its  franchises. 

§  188.  No  railroad  or  other  transportation  com- 
pany shall  grant  free  passes  or  tickets,  or  passes  or 
tickets  at  a  discount,  to  members  of  the  legislature, 
or  any  state,  district,  county  or  municipal  officers,  ex- 
cept Railroad  Commissioners.  The  legislature  shall 
enact  suitable  laws  for  the  detection,  prevention  and 
punishment  of  violations  of  this  provision. 

§  195.  Express,  telegraph,  telephone,  and  sleeping- 
car  companies  are  declared  common  carriers  in  their 
respective  lines  of  business  and  subject  to  liability  as 
such. 

§  198.  The  legislature  shall  enact  laws  to  prevent 
all  trust  conventions,  contracts  and  agreements  inim- 
ical to  the  public  welfare. 

i»  Miss.  Const.  1890,  art.  L 


§§  26-30  CONSTITUTIONAL   PROVISIONS.  31 

§  199.  The  term  "corporation"  used  in  this  article 
shall  include  all  associations  and  all  joint-stock  com- 
panies for  pecuniary  gain,  having  privileges  not  pos- 
sessed by  individuals  and  partnerships.20 

§  26.  New  York  Constitution — (a)  Distribution 
of  Powers  of  Government. — New  York  constitution, 
without  special  designation,  recognizes  a  division  of 
the  powers  of  the  state  into  the  legislative  (article 
III),  the  executive  (article  IV),  and  the  judicial 
(article  VI).21 

§  27.     {b)     Corporation  Control. — There  is  no 

specific  provision  in  the  constitution  regarding  the 
regulation  and  control  of  railroads  and  other  public 
utilities. 

§  28.  North  Carolina  Constitution — (a)  Distribu- 
tion of  Powers  of  Government. — There  is  no  specific 
distribution  of  powers  of  government  except  that  the 
distribution  into  legislative,  executive  and  judicial  is 
recognized  as  provided  in  articles  II,  III  and  IV  of  that 
instrument.22 

§  29.    (b)     Corporation  Control. — There  is  no 

provision  in  the  constitution  relative  to  the  control  of 
railroads  and  other  public  utilities. 

§30.  Oklahoma  Constitution — (a)  Distribution  of 
Powers  of  Government. — §  1.  The  powers  of  the  gov- 
ernment of  the  state  of  Oklahoma  shall  be  divided  into 
three  separate  departments,  the  legislative,  executive, 
and  judicial  and  except  as  provided  in  this  constitu- 
tion, the  legislative  and  executive,  and  judicial  depart- 
ments of  government  shall  be  separate  and  distinct 

20  Miss.    Const.    1890,   art.   VIL 

21  N.  Y.   Const.   1904. 

22  N.  C.  Const.  1876. 


32  CALIFORNIA   PUBLIC   UTILITIES   ACT.  §  31 

and  neither  shall  exercise  the  powers  properly  belong- 
ing to  either  of  the  others.23 

§  31.     (b)     Corporation     Control  —  Railroad 

and  Public  Service  Corporations. — §  2.  Every  rail- 
road, oil  pipe,  car,  express,  telephone  or  telegraph  cor- 
poration or  association  organized  or  authorized  to  do 
a  transportation  or  transmission  business  under  the 
laws  of  this  state  for  such  purpose,  shall,  each  respec- 
tively, have  the  right  to  construct  and  operate  its  lines 
between  any  point  in  the  state,  and  as  such  to  connect 
at  the  state  line  with  like  lines,  and  every  such  com- 
pany shall  have  the  right  with  its  road  or  line,  to  in- 
tersect, connect  with,  or  cross  any  railroad  or  such 
line. 

§  3.  Every  railroad,  car,  or  express  company  shall, 
each  respectively,  receive  and  transport  without  de- 
lay or  discrimination  each  other's  cars,  loaded  or 
empty,  tonnage,  and  passengers,  under  such  rules  and 
regulations  as  may  be  prescribed  by  law  or  any  com- 
mission created  by  this  constitution  or  by  act  of  the 
legislature  for  that  purpose. 

§  4.  All  oil  pipe  companies  shall  be  subject  to  the 
reasonable  control  and  regulation  of  the  Corporation 
Commission,  and  shall  receive  and  transport  each 
other's  tonnage  or  oils,  or  commodities,  under  such 
rules  and  regulations  as  shall  be  prescribed  by  law  or 
such  Commission. 

§  5.  All  telephone  and  telegraph  lines,  operated  for 
hire,  shall  each  respectively,  receive  and  transmit  each 
other's  messages  without  delay  or  discrimination,  and 
make  physical  connections  with  each  other's  lines, 
under  such  rules  and  regulations  as  shall  be  prescribed 
by  law,  or  by  any  commission  created  by  this  constitu- 
tion, or  any  act  of  the  legislature,  for  that  purpose. 

23  Okl.  Const.   1907,  art.  IV. 


§  32  CONSTITUTIONAL  PROVISIONS.  33 

§  6.  Railroads  heretofore  constructed,  or  which 
may  hereafter  be  constructed  in  this  state,  are  hereby 
declared  public  highways.  Every  railroad  or  other 
public  service  corporation  organized  or  doing  business 
in  this  state,  under  the  laws  or  authority  thereof,  shall 
have  and  maintain  a  public  office  or  place  in  this  state, 
for  the  transaction  of  its  business,  where  transfers  of 
stock  shall  be  made,  and  where  shall  be  kept,  for  in- 
spection by  the  stockholders  of  such  corporation, 
books,  in  which  shall  be  recorded  the  amount  of  cap- 
ital stock  subscribed,  the  names  of  the  owners  of 
stock,  the  amounts  owned  by  them,  respectively;  the 
amount  of  stock  paid,  and  by  whom;  the  transfer  of 
said  stock,  with  the  date  of  transfer;  the  amount  of 
its  assets  and  liabilities,  and  the  names  and  places  of 
residence  of  its  officers,  and  such  other  matters  re- 
quired by  law  or  by  order  of  the  Corporation  Commis- 
sion. The  directors  of  every  railroad  company,  or 
other  public  service  corporation,  shall  hold  at  least 
one  meeting  annually  in  this  state,  such  notice  of  which 
shall  be  given  thirty  days  previous,  and  the  president 
or  superintendent  of  every  railroad  company  and  other 
public  service  corporation  organized  or  doing  business 
in  this  state  under  the  laws  of  this  state  or  the  author- 
ity thereof,  shall  report  annually  under  oath,  and 
make  such  other  report  as  may  be  required  by  law  or 
order  of  the  Corporation  Commission  to  said  Commis- 
sion and  acts  and  doings,  which  report  shall  include 
such  matters  relating  to  roads  and  public  service  cor- 
porations as  may  be  prescribed  by  law.  The  legisla- 
ture shall  pass  all  necessary  laws  enforcing,  by  suitable 
penalties  all  the  provisions  of  this  section.24 

§  32.     (c)     Corporation     Commission. — §  16. 

The  qualifications  of  such  commissioners  shall  be  as 
follows:  to  be  resident  citizens  of  this  state  for  over 

2*  Okl.   Const.   1907,  art.  X. 
3 


34  CALIFORNIA   PUBLIC   UTILITIES   ACT.  §  32 

two  years  next  preceding  the  election,  and  qualified 
voters  under  the  constitution  and  laws,  and  not  less 
than  thirty  years  of  age;  nor  shall  such  commissioners, 
or  either  of  them,  be,  directly  or  indirectly,  interested 
in  any  railroad,  street  railway,  traction  line,  canal, 
steamboat,  pipe-line,  car  line,  sleeping-car  line,  car  as- 
sociation, express  line,  telephone  or  telegraph  line, 
operated  for  hire,  in  this  state,  or  out  of  it,  or  any 
stock,  bond,  mortgage,  security,  or  earnings  of  any 
such  railroad,  street  railway,  traction  line,  canal, 
steamboat,  pipe-line,  car  line,  sleeping-car  line,  car  as- 
sociation, express  line,  telephone  or  telegraph  line, 
compress  or  elevator  companies;  and  if  such  commis- 
sioner shall  voluntarily  become  so  interested,  his  of- 
fice shall  become  vacant;  and  if  any  corporation  com- 
missioner shall  become  so  interested  otherwise  than 
voluntarily,  he  shall,  within  a  reasonable  time,  devest 
himself  of  such  interest;  and  failing  to  do  this,  his 
office  shall  become  vacant.  Nor  shall  any  such  com- 
missioner hold  any  other  office  under  the  government 
of  the  United  States,  or  of  this  state  or  any  other  state 
government,  and  shall  not,  while  such  commissioner, 
engage  in  any  occupation  or  business  inconsistent  with 
his  duties  as  such  commissioner. 

§  17.  Before  entering  upon  the  duties  of  his  office, 
each  of  said  commissioners  shall  take  and  subscribe 
to  the  oath  of  office  as  prescribed  in  this  constitution 
and  shall,  in  addition  thereto,  swear  that  he  is  not, 
directly  or  indirectly,  interested  in  any  railroad,  street 
railway,  traction  line,  canal,  steamboat,  pipe-line,  car 
line,  sleeping-car  line,  car  association,  express  line, 
telephone  or  telegraph  line,  nor  in  the  bonds,  stocks, 
mortgages,  securities,  contract  or  earnings  of  any  rail- 
road, street  railway,  traction  line,  canal,  steamboat, 
pipe-line,  car  line,  sleeping-car  line,  car  association, 
express  line,  telephone  or  telegraph  line;  and  that  he 


§  32  CONSTITUTIONAL   PROVISIONS.  35 

will,  to  the  best  of  his  ability,  faithfully  and  justly 
execute  and  enforce  the  provisions  of  this  constitu- 
tion, and  all  the  laws  of  this  state  concerning  rail- 
roads, street  railways,  traction  lines,  canals,  steam- 
boats, pipe-lines,  car  lines,  sleeping-car  lines,  car  asso- 
ciations, express  lines,  telephone  and  telegraph  lines, 
compress  and  elevator  companies,  and  all  other  cor- 
porations over  which  said  Commission  has  jurisdic- 
tion, which  oath  shall  be  filed  with  the  Secretary  of 
State. 

§  18.  The  Commission  shall  have  the  power  and 
authority  and  be  charged  with  the  duty  of  supervis- 
ing, regulating,  and  controlling  all  transportation  and 
transmission  companies  doing  business  in  this  state, 
in  all  matters  relating  to  the  performance  of  their  pub- 
lic duties  and  their  charges  therefor,  and  of  correcting 
abuses  and  preventing  unjust  discrimination  and  ex- 
tortion by  such  companies;  and  to  that  end  the  Com- 
mission shall,  from  time  to  time,  prescribe  and  enforce 
against  such  companies,  in  the  manner  hereinafter  au- 
thorized, such  rates,  charges,  classifications  of  traffic, 
and  rules  and  regulations,  and  shall  require  them  to 
establish  and  maintain  all  such  public  service,  facil- 
ities, and  conveniences  as  may  be  reasonable  and  just, 
which  said  rates,  charges,  classifications,  rules,  regu- 
lations, and  requirements,  the  Commission  may,  from 
time  to  time,  alter  or  amend.  All  rates,  charges,  clas- 
sifications, rules  and  regulations  adopted,  or  acted 
upon,  by  any  such  company,  inconsistent  with  those 
prescribed  by  the  Commission,  within  the  scope  of  its 
authority,  shall  be  unlawful  and  void.  The  Commis- 
sion shall  also  have  the  right,  at  all  times,  to  inspect 
the  books  and  papers  of  all  transportation  and  trans- 
mission companies  doing  business  in  this  state,  and 
to  require  from  such  companies,  from  time  to  time, 
special  reports  and  statements,  under  oath,  concern- 


36  CALIFORNIA   PUBLIC   UTILITIES   ACT.  §  32 

ing  their  business;  it  shall  keep  itself  fully  informed 
of  the  physical  condition  of  all  the  railroads  of  the 
state,  as  to  the  manner  in  which  they  are  operated, 
with  reference  to  the  security  and  accommodation  of 
the  public,  and  shall,  from  time  to  time,  make  and  en- 
force such  requirements,  rules,  and  regulations  as  may 
be  necessary  to  prevent  unjust  or  unreasonable  dis- 
crimination and  extortion  by  any  transportation  or 
transmission  company  in  favor  of,  or  against  any  per- 
son, locality,  community,  connecting  line,  or  kind  of 
traffic,  in  the  matter  of  car  service,  train  or  boat  sched- 
ule, efficiency  of  transportation,  or  transmission,  or 
otherwise,  in  connection  with  the  public  duties  of  such 
company.  Before  the  Commission  shall  prescribe  or 
fix  any  rate,  charge  or  classification  of  traffic,  and  be- 
fore it  shall  make  any  order,  rule,  regulation,  or  re- 
quirement directed  against  any  one  or  more  companies 
by  name,  the  company  or  companies  to  be  affected  by 
such  rate,  charge,  classification,  order,  rule,  regula- 
tion, or  requirement,  shall  first  be  given,  by  the  Com- 
mission, at  least  ten  days'  notice  of  the  time  and  place 
when  and  where  the  contemplated  action  in  the  prem- 
ises will  be  considered  and  disposed  of,  and  shall  be 
afforded  a  reasonable  opportunity  to  introduce  evi- 
dence and  to  be  heard  thereon,  to  the  end  that  justice 
may  be  done,  and  shall  have  process  to  enforce  the  at- 
tendance of  witnesses;  and  before  said  Commission 
shall  make  or  prescribe  any  general  order,  rule,  regu- 
lation, or  requirement,  not  directed  against  any  spe- 
cific company  or  companies  by  name,  the  contemplated 
order,  rule,  regulation,  or  requirement  shall  first  be 
published  in  substance,  not  less  than  once  a  week,  for 
four  consecutive  weeks,  in  one  or  more  of  the  news- 
papers of  general  circulation  published  in  the  county 
in  which  the  capitol  of  this  state  may  be  located,  to- 
gether with  the  notice  of  the  time  and  place,  when 
and  where  the  Commission  will  hear  any  objections 


§  32  CONSTITUTIONAL   PROVISIONS.  37 

which  may  be  urged  by  any  person  interested,  against 
the  proposed  order,  rule,  regulation,  or  requirement; 
and  every  such  general  order,  rule,  regulation,  or  re- 
quirement, made  by  the  Commission,  shall  be  pub- 
lished at  length,  for  the  time  and  in  the  manner  above 
specified,  before  it  shall  go  into  effect,  and  shall  also,  so 
long  as  it  remains  in  force,  be  published  in  each  subse- 
quent annual  report  of  the  Commission.  The  author- 
ity of  the  Commission  (subject  to  review  on  appeal  as 
hereinafter  provided)  to  prescribe  rates,  charges,  and 
classifications  of  traffic,  for  transportation  and  trans- 
mission companies,  shall,  subject  to  regulation  by  law, 
be  paramount;  but  its  authority  to  prescribe  any  other 
rules,  regulations,  or  requirements  for  corporations  or 
other  persons  shall  be  subject  to  the  superior  author- 
ity of  the  legislature  to  legislate  thereon  by  general 
laws:  Provided,  however,  that  nothing  in  this  section 
shall  impair  the  rights  which  have  heretofore  been, 
or  may  hereafter  be,  conferred  by  law  upon  the  au- 
thorities of  any  city,  town,  or  county  to  prescribe 
rules,  regulations,  or  rates  of  charges  to  be  observed 
by  any  public  service  corporation  in  connection  with 
any  services  performed  by  it  under  a  municipal  or 
county  franchise  granted  by  such  city,  town,  or  county, 
so  far  as  such  services  may  be  wholly  within  the  limits 
of  the  city,  town,  or  county  granting  the  franchise. 
Upon  the  request  of  the  parties  interested,  it  shall  be 
the  duty  of  the  Commission,  as  far  as  possible,  to 
effect,  by  mediation,  the  adjustment  of  claims,  and  the 
settlement  of  controversies,  between  transportation  or 
transmission  companies  and  their  patrons  or  em- 
ployees. 

§  18a.  The  Corporation  Commission  shall  organize 
by  electing  one  of  its  members  chairman  and  appoint 
a  secretary,  whose  salary  shall  be  fixed  by  the  legis- 
lature. A  majority  of  said  Commission  shall  consti- 
tute a  quorum,  and  the  concurrence  of  the  majority 


38  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  32 

of  said  Commission  shall  be  necessary  to  decide  any 
question. 

§  18b.  As  used  in  this  article,  the  term  "com- 
pany" shall  include  associations  and  joint-stock  com- 
panies having  any  power  or  privileges  not  possessed 
by  individuals,  and  include  all  corporations  except 
municipal  corporations  and  public  institutions  owned 
or  controlled  by  the  state. 

§  19.  In  all  matters  pertaining  to  the  public  visita- 
tion, regulation,  or  control  of  corporations,  and  within 
the  jurisdiction  of  the  Commission,  it  shall  have  the 
attendance  of  witnesses,  and  the  production  of  papers, 
to  punish  for  contempt  any  person  guilty  of  disre- 
spectful or  disorderly  conduct  in  the  presence  of  the 
Commission  while  in  session,  and  to  enforce  compli- 
ance with  any  of  its  lawful  orders  or  requirements  by 
adjudging,  and  by  enforcing  its  own  appropriate 
process,  against  the  delinquent  or  offending  party  or 
company  (after  it  shall  have  been  first  duly  cited,  pro- 
ceeded against  by  due  process  of  law  before  the  Com- 
mission sitting  as  a  court,  and  afforded  opportunity 
to  introduce  evidence  and  to  be  heard,  as  well  as 
against  the  validity,  justness,  or  reasonableness  of  the 
order  or  requirement  alleged  to  have  been  violated,  as 
against  the  liability  of  the  company  for  the  alleged 
violation),  such  fines  or  other  penalties  as  may  be  pre- 
scribed or  authorized  by  this  constitution  or  by-law. 
The  Commission  may  be  vested  with  such  additional 
powers,  and  charged  with  such  other  duties  (not  in- 
consistent with  this  constitution)  as  may  be  prescribed 
by  law,  in  connection  with  the  visitation,  regulation, 
or  control  of  corporations,  or  with  the  prescribing  and 
enforcing  of  rates  and  charges  to  be  observed  in  the 
conduct  of  any  business  where  the  state  has  the  right 
to  prescribe  the  rates  and  charges  in  connection  there- 
with, or  with  the  assessment  of  the  property  of  cor- 


§  32  CONSTITUTIONAL   PROVISIONS.  39 

porations,  or  the  appraisement  of  their  franchises,  for 
taxation,  or  with  the  investigation  of  the  subject  of 
taxation  generally.  Any  corporation  failing  or  refus- 
ing to  obey  any  valid  order  or  requirement  of  the  Com- 
mission, within  reasonable  time,  not  less  than  ten  days, 
as  shall  be  fixed  in  the  order,  may  be  fined  by  the  Com- 
mission (proceeding  by  due  process  of  law  as  afore- 
said) such  sum,  not  exceeding  five  hundred  dollars, 
as  may  be  prescribed  or  authorized  by  law;  and  each 
day's  continuance  of  such  failure  or  refusal,  after  due 
service  upon  such  corporation  of  the  order  or  require- 
ment of  the  Commission,  shall  be  a  separate  offense: 
Provided,  that  should  the  operation  of  such  order  or 
requirement  be  suspended,  pending  any  appeal  there- 
from, the  period  of  such  suspension  shall  not  be  com- 
puted against  the  company  in  the  matter  of  its  lia- 
bility to  fines  or  penalties. 

§  20.  From  any  action  of  the  Commission  prescrib- 
ing rates,  charges,  or  classifications  of  traffic,  or  affect- 
ing the  train  schedule  of  any  transportation  company, 
or  requiring  additional  facilities,  conveniences,  or 
public  service  of  any  transportation  or  transmission 
company,  or  refusing  to  approve  a  suspending  bond, 
or  requiring  additional  security  thereon  or  an  increase 
thereof,  as  hereinafter  provided  for,  an  appeal  (sub- 
ject to  such  reasonable  limitations  as  to  time,  regula- 
tions as  to  procedure  and  provisions  as  to  cost,  as  may 
be  prescribed  by  law)  may  be  taken  by  the  corpora- 
tion whose  rates,  charges,  or  classifications  of  traffic, 
schedule,  facilities,  conveniences,  or  service,  are  af- 
fected, or  by  any  person  deeming  himself  aggrieved 
by  such  action,  or  (if  allowed  by  law)  by  the  state. 
Until  otherwise  provided  by  law,  such  appeal  shall 
be  taken  in  the  manner  in  which  appeals  may  be  taken 
to  the  supreme  court  from  the  district  courts,  except 
that  such  an  appeal  shall  be  of  right,  and  the  supreme 
court  may  provide   by  rule  for  proceedings  in  the 


40  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  32 

matter  of  appeals  in  any  particular  in  which  the  exist- 
ing rules  of  law  are  inapplicable.  If  such  appeal  be 
taken  by  the  corporation  whose  rates,  charges,  or 
classifications  of  traffic,  schedules,  facilities,  conven- 
iences, or  service  are  affected,  the  state  shall  be  made 
the  appellee;  but,  in  the  other  cases  mentioned,  the 
corporation  so  affected  shall  be  made  the  appellee. 
The  legislature  may  also,  by  general  laws,  provide  for 
appeals  from  any  other  action  of  the  Commission,  by 
the  state,  or  by  any  person  interested  irrespective  of 
the  amount  involved.  All  appeals  from  the  Commis- 
sion shall  be  to  the  supreme  court  only,  and  in  all  ap- 
peals to  which  the  state  is  a  party,  it  shall  be  repre- 
sented by  the  attorney  general  or  his  appointed  repre- 
sentative. No  court  of  this  state  (except  the  supreme 
court,  by  way  of  appeals  as  herein  authorized)  shall 
have  jurisdiction  to  review,  correct,  or  annul  any  ac- 
tion of  the  Commission  within  the  scope  of  its  author- 
ity, or  to  suspend  or  delay  the  execution  or  operation 
thereof,  or  to  enjoin,  restrain,  or  interfere  with  the 
Commission  in  the  performance  of  its  official  duties: 
Provided,  however,  that  the  writs  of  mandamus  and 
prohibition  shall  lie  from  the  supreme  court  to  the 
Commission  in  all  cases  where  such  writs,  respec- 
tively, .would  lie  to  any  inferior  court  or  officer. 

§  21.  Upon  the  granting  of  an  appeal,  a  writ  of 
supersedeas  may  be  awarded  by  the  supreme  court, 
suspending  the  operation  of  the  action  appealed  from 
until  the  final  disposition  of  the  appeal;  but,  prior  to 
the  final  reversal  thereof  by  the  supreme  court,  no  ac- 
tion of  the  Commission  prescribing  or  affecting  the 
rates,  charges,  or  classifications  of  traffic  of  any  trans- 
portation or  transmission  company  shall  be  delayed, 
or  suspended,  in  its  operation,  by  reason  of  any  ap- 
peal, until  a  suspending  bond  shall  first  have  been  exe- 
cuted and  filed  with,  and  approved  by  the  Commis- 
sion (or  approved,  on  review,  by  the  supreme  court), 


§  32  CONSTITUTIONAL   PROVISIONS.  41 

payable  to  the  state,  and  sufficient  in  amount  and  se- 
curity to  insure  the  prompt  refunding,  by  the  appeal- 
ing corporation  to  the  parties  entitled  thereto,  of  all 
charges  which  such  company  may  collect  or  receive, 
pending  the  appeal,  in  excess  of  those  fixed,  or  author- 
ized, by  the  final  decision  of  the  court  on  appeal.  The 
Commission,  upon  the  execution  of  such  bond,  shall 
forthwith  require  the  appealing  company,  under  pen- 
alty of  the  immediate  enforcement  (pending  the  ap- 
peal and  notwithstanding  any  supersedeas),  of  the 
order  or  requirement  appealed  from,  to  keep  such  ac- 
counts, and  to  make  to  the  Commission,  from  time  to 
time,  such  reports,  verified  by  oath,  as  may,  in  the 
judgment  of  the  Commission  suffice  to  show  the 
amounts  being  charged  or  received  by  the  company, 
pending  the  appeal,  in  excess  of  the  charge  allowed  by 
the  action  of  the  Commission  appealed  from,  together 
with  the  names  and  addresses  of  the  persons  to  whom 
such  overcharges  will  be  refundable  in  case  the 
charges  made  by  the  company,  pending  the  appeal,  be 
not  sustained  on  such  appeal;  and  the  Commission 
shall  also,  from  time  to  time,  require  such  company, 
under  like  penalty,  to  give  additional  security  on,  or 
to  increase  the  said  suspending  bond,  whenever,  in  the 
opinion  of  the  Commission,  the  same  may  be  neces- 
sary to  insure  the  prompt  refunding  of  the  over- 
charges aforesaid.  Upon  the  final  decision  of  such 
appeal,  all  amounts  which  the  appealing  company 
may  have  collected,  pending  the  appeal,  in  excess  of 
that  authorized  by  such  final  decision,  shall  be 
promptly  refunded  by  the  company  to  the  parties  en- 
titled thereto,  in  such  manner  and  through  such 
methods  of  distribution  as  may  be  prescribed  by  the 
Commission,  or  by  law.  All  such  appeals,  affecting 
rates,  charges,  or  classifications  of  traffic,  shall  have 
precedence  upon  the  docket  of  the  supreme  court,  and 
shall  be  heard  and  disposed  of  promptly  by  the  court, 


42  CALIFORNIA   PUBLIC   UTILITIES   ACT.  §  32 

irrespective  of  its  place  of  session,  next  after  the 
habeas  corpus,  and  state  cases  already  on  the  docket 
of  the  court. 

§  22.  In  no  case  of  appeal  from  the  Commission, 
shall  any  new  or  additional  evidence  be  introduced  in 
the  supreme  court;  but  the  chairman  of  the  Commis- 
sion, under  the  seal  of  the  Commission,  shall  certify 
to  the  supreme  court  all  the  facts  upon  which  the  ac- 
tion appealed  from  was  based  and  which  may  be  essen- 
tial for  the  proper  decision  of  the  appeal,  together 
with  such  of  the  evidence  introduced  before,  or  con- 
sidered by,  the  Commission  as  may  be  selected,  speci- 
fied, and  required  to  be  certified,  by  any  party  in  in- 
terest, as  well  as  such  other  evidence,  so  introduced, 
or  considered  as  the  Commission  may  deem  proper  to 
certify.  The  Commission  shall,  whenever  an  appeal 
is  taken  therefrom,  file  with  the  record  of  the  case, 
and  as  a  part  thereof,  a  written  statement  of  the 
reasons  upon  which  the  action  appealed  from  was 
based,  and  such  statement  shall  be  read  and  consid- 
ered by  the  supreme  court,  upon  disposing  of  the  ap- 
peal. The  supreme  court  shall  have  jurisdiction,  on 
such  appeal,  to  consider  and  determine  the  reasonable- 
ness and  justness  of  the  action  of  the  Commission  ap- 
pealed from,  as  well  as  any  other  matter  arising  under 
such  appeal:  Provided,  however,  that  the  action  of  the 
Commission  appealed  from  shall  be  regarded  as  prima 
facie  just,  reasonable,  and  correct;  but  the  court  may, 
when  it  deems  necessary,  in  the  interest  of  justice,  re- 
mand to  the  Commission  any  case  pending  on  appeal, 
and  require  the  same  to  be  further  investigated  by  the 
Commission,  and  reported  upon  to  the  court  (together 
with  a  certificate  of  such  additional  evidence  as  may 
be  tendered  before  the  Commission  by  any  party  in 
interest),  before  the  appeal  is  finally  decided. 

§  23.     Whenever  the  court,  upon  appeal,  shall  re- 
verse an  order  of  the  Commission  affecting  the  rates, 


§  32  CONSTITUTIONAL   PROVISIONS.  43 

charges,  or  the  classifications  of  traffic  of  any  trans- 
portation or  transmission  company,  it  shall,  at  the 
same  time,  substitute  therefor  such  orders  as,  in  its 
opinion,  the  Commission  should  have  made  at  the  time 
of  entering  the  order  appealed  from;  otherwise  the 
reversal  order  shall  not  be  valid.  Such  substituted 
order  shall  have  the  same  force  and  effect  (and  none 
other)  as  if  it  had  been  entered  by  the  Commission 
at  the  time  the  original  order  appealed  from  was  en- 
tered. The  right  of  the  Commission  to  prescribe  and 
enforce  rates,  charges,  classifications,  rules  and  regu- 
lations affecting  any  or  all  actions  of  the  Commission 
theretofore  entered  by  it  and  appealed  from,  but  based 
upon  circumstances  or  conditions  different  from  those 
existing  at  the  time  the  order  appealed  from  was 
made,  shall  not  be  suspended  or  impaired  by  reason 
of  the  pendency  of  such  appeal,  but  no  order  of 
the  Commission,  prescribing  or  altering  such  rates, 
charges,  classifications,  rules,  or  regulations,  shall  be 
retroactive. 

§  24.  The  right  of  any  person  to  institute  and 
prosecute  in  the  ordinary  courts  of  justice,  any  ac- 
tion, suit,  or  motion  against  any  transportation  or 
transmission  company,  for  any  claim  or  cause  of  ac- 
tion against  such  company,  shall  not  be  extinguished 
or  impaired,  by  reason  of  any  fine  or  other  penalty 
which  the  Commission  may  impose,  or  be  authorized 
to  impose,  upon  such  company  because  of  its  breach 
of  any  public  duty,  or  because  of  its  failure  to  comply 
with  any  order  or  requirement  of  the  Commission; 
but,  in  no  such  proceeding  by  any  person  against  such 
corporation,  nor  in  any  collateral  proceeding  shall  the 
reasonableness,  justness,  or  validity  of  any  rate, 
charge,  classification  of  traffic,  rule,  regulation,  or  re- 
quirement, theretofore  prescribed  by  the  Commission, 
within  the  scope  of  its  authority,  and  then  in  force, 
be  questioned:  Provided,  however,  that  no  case  based 


44  CALIFORNIA   PUBLIC   UTILITIES   ACT.  §  32 

upon  or  involving  any  order  of  the  Commission  shall 
be  heard  or  disposed  of,  against  the  objection  of  either 
party,  so  long  as  such  order  is  suspended  in  its  opera- 
tion by  an  order  of  the  supreme  court  as  authorized 
by  this  constitution  or  by  any  law  passed  in  pursu- 
ance thereof. 

§  25.  The  Commission  shall  make  annual  reports 
to  the  governor  of  its  proceedings,  in  which  reports  it 
shall  recommend,  from  time  to  time,  such  new  or  ad- 
ditional legislation  in  reference  to  its  powers  or  duties, 
or  the  creation,  supervision,  regulation  or  control  of 
corporations,  or  to  the  subject  of  taxation,  as  it  may 
deem  wise  or  expedient,  or  as  may  be  required  by  law. 

§  26.  It  shall  be  the  duty  of  each  and  every  rail- 
way company,  subject  to  the  provisions  herein,  to  pro- 
vide and  maintain  adequate,  comfortable,  and  clean 
depots,  and  depot  buildings,  at  its  several  stations, 
for  the  accommodation  of  passengers,  and  said  depot 
buildings  shall  be  kept  well  lighted  and  warmed  for 
the  comfort  and  accommodation  of  the  traveling  pub- 
lic; and  all  such  roads  shall  keep  and  maintain  ade- 
quate and  suitable  freight  depots  and  buildings  for 
the  receiving,  handling,  storing,  and  delivering  of  all 
freight  handled  by  such  roads. 

§  27.  In  case  any  railroad  company  shall  hereafter 
seek  to  cross  at  grade  with  its  track  or  tracks,  the 
track  or  tracks  of  another  railroad,  the  railroad  seek- 
ing to  cross  at  grade,  within  a  reasonable  time,  shall 
be  compelled  to  interlock  or  protect  such  crossings  by 
safety  devices,  to  be  designated  by  the  Commission, 
and  all  costs  of  appliance,  together  with  the  expenses 
of  putting  them  in,  shall  be  borne  equally  by  each  com- 
pany: Provided,  that  this  act  shall  not  apply  to  cross- 
ings of  sidetracks. 

§  28.  The  commissioners,  or  either  of  them,  or 
such  persons  as  they  may  employ  therefor,  shall  have 


§  32  CONSTITUTIONAL.  PROVISIONS.  45 

the  right,  at  such  times  as  they  may  deem  necessary, 
to  inspect  the  books  and  papers  of  any  railroad  com- 
pany or  other  public  service  corporation,  and  to  ex- 
amine, under  oath,  any  officer,  agent,  or  employee  of 
such  corporations  in  relation  to  the  business  and  af- 
fairs of  the  same.  If  any  railroad  company  or  other 
public  service  corporation  shall  refuse  to  permit  the 
commissioners,  or  either  of  them,  or  any  person  author- 
ized thereto,  to  examine  its  books  and  papers,  such 
railroad  company  or  other  public  service  corporation 
shall,  until  otherwise  provided  by  law,  for  each  offense, 
pay  to  the  state  of  Oklahoma  not  less  than  one  hun- 
dred and  twenty-five  dollars,  nor  more  than  five  hun- 
dred dollars,  for  each  day  it  shall  so  fail  or  refuse,  and 
the  officer  or  other  person  so  refusing  shall  be  punished 
as  the  law  shall  prescribe. 

§  29.  The  Commission  shall  ascertain,  and  enter 
of  record,  the  same  to  be  a  public  record,  as  early  as 
practicable,  the  amount  of  money  expended  in  con- 
struction and  equipment  per  mile  of  every  railroad 
and  other  public  service  corporation  in  Oklahoma,  the 
amount  of  money  expended  to  procure  the  right  of 
way,  and  the  amount  of  money  it  would  require  to 
reconstruct  the  roadbed,  track,  depots,  and  transporta- 
tion facilities,  and  to  replace  all  the  physical  prop- 
erties belonging  to  the  railroad  or  other  public 
service  corporation.  It  shall  also  ascertain  the  out- 
standing bonds,  debentures,  and  indebtedness,  and  the 
amount,  respectively,  thereof,  when  issued,  and  rate 
of  interest,  when  due,  for  what  purposes  issued,  how 
used,  to  whom  issued,  to  whom  sold,  and  the  price  in 
cash,  property,  or  labor,  if  any  received  therefor,  what 
became  of  the  proceeds,  by  whom  the  indebtedness  is 
held,  the  amount  purporting  to  be  due  thereon,  the 
floating  indebtedness  of  the  company,  to  whom  due, 
and  his  address,  the  credits  due  on  it,  the  property  on 
hand    belonging    to  the  railroad    company  or  other 


46  CALIFORNIA   PUBLIC   UTILITIES   ACT.  §  32 

public  service  corporation,  and  the  judicial  or  other 
sales  of  said  road,  its  property  or  franchises,  and  the 
amounts  purporting  to  have  been  paid,  and  in  what 
manner  paid  therefor.  The  Commission  shall  also 
ascertain  the  amounts  paid  for  salaries  to  the  officers 
of  the  railroad,  or  other  public  service  corporation, 
and  the  wages  paid  its  employees.  For  the  purpose 
in  this  section  named,  the  Commission  may  employ 
experts  to  assist  them  when  needed,  and  from  time 
to  time,  as  the  information  required  by  this  section 
is  obtained,  it  shall  communicate  the  same  to  the  at- 
torney general  by  report,  and  file  a  duplicate  thereof 
with  the  state  examiner  and  inspector  for  public  use, 
and  said  information  shall  be  printed,  from  time  to 
time,  in  the  annual  report  of  the  Commission. 

§  30.  No  transportation  or  transmission  company 
shall  charge  or  receive  any  greater  compensation,  in 
the  aggregate,  for  transporting  the  same  class  of  pas- 
sengers or  property,  or  for  transmitting  the  same  class 
of  messages,  over  a  shorter  than  a  longer  distance, 
along  the  same  line,  and  in  the  same  direction — the 
shorter  being  included  in  the  longer  distance;  but 
this  section  shall  not  be  construed  as  authorizing  any 
such  company  to  charge  or  receive  as  great  compensa- 
tion for  a  shorter  as  for  a  longer  distance.  The  Com- 
mission may,  from  time  to  time,  authorize  any  such 
company  to  disregard  the  foregoing  provisions  of  this 
section,  by  charging  such  rates  as  the  Commission 
may  prescribe  as  just  and  equitable  between  such  com- 
pany and  the  public,  to  or  from  any  junctional  or  com- 
petitive points  or  localities,  or  where  the  competition 
of  points  located  without  this  state  may  make  neces- 
sary the  prescribing  of  special  rates  for  the  protection 
of  the  commerce  of  this  state ;  but  this  section  shall  not 
apply  to  mileage  tickets,  or  to  any  special  excursion, 
or  commutation  rates,  or  to  special  rates  for  services 
rendered  to  this  state,  or  to  the  United  States,  or  in 


§  32  CONSTITUTIONAL   PROVISIONS.  47 

the  interest  of  some  public  object,  when  such  tickets 
or  rates  shall  have  been  prescribed  or  authorized  by 
the  Commission. 

§  31.  No  railroad,  oil  pipe-line,  telephone,  tele- 
graph, express  or  car  corporation  organized  under  the 
laws  of  any  other  state,  or  of  the  United  States,  and 
doing  business,  or  proposing  to  do  business  in  this 
state,  shall  be  entitled  to  the  benefit  of  the  right  of 
eminent  domain  in  this  state  until  it  shall  have  become 
a  body  corporate  pursuant  to  or  in  accordance  with 
the  laws  of  this  state. 

§  32.  The  said  Commission  shall  have  power,  and 
it  is  hereby  made  its  duty,  to  investigate  all  through 
freight  or  passenger  rates  on  railroads  in  this  state, 
and  when  the  same  are,  in  the  opinion  of  the  Commis- 
sion, excessive  or  levied  or  laid  in  violation  of  the 
interstate  commerce  law,  or  the  rules  and  regulations 
of  the  Interstate  Commerce  Commission,  the  proper 
officials  of  the  railroads  are  to  be  notified  of  the  facts 
and  requested  to  reduce  them  or  make  the  proper  cor- 
rections, as  the  case  may  be.  When  the  rates  are  not 
changed,  or  the  proper  corrections  are  not  made  ac- 
cording to  the  request  of  the  Commission,  it  shall  be 
the  duty  of  the  latter  to  notify  the  Interstate  Com- 
merce Commission  and  to  make  proper  application  to 
it  for  relief,  and  the  attorney  general  or  such  other 
persons  as  may  be  designated  by  law  shall  represent 
the  Commission  in  all  such  matters. 

§  33.  Any  person,  firm,  or  corporation  owning  or 
operating  any  coal,  lead,  iron,  or  zinc  mine,  or  any 
sawmill,  grain  elevator,  or  other  industry,  whenever 
the  Commission  shall  reasonably  determine  that  the 
amount  of  business  is  sufficient  to  justify  the  same, 
near  or  within  a  reasonable  distance  of  any  track,  may 
at  the  expense  of  such  person,  firms,  or  corporation 
build  and  keep  in  repair  a  switch  leading  from  such 


48  CALIFORNIA   PUBLIC   UTILITIES   ACT.  §  32 

railroad  to  such  mine,  sawmill,  elevator  or  other  in- 
dustry; such  railroad  company  shall  be  required  to 
furnish  the  switch  stand  and  frog  and  other  necessary 
material  for  making  connection  with  such  sidetrack 
or  spur  under  such  reasonable  terms,  conditions  and 
regulations  as  the  said  Commission  may  prescribe,  and 
shall  make  connection  therewith.  The  party  owning 
such  line,  sawmill,  elevator  or  other  industry  shall  pay 
the  actual  cost  thereof.  If  any  railroad  company, 
after  proper  demand  therefor  is  made,  shall  refuse  to 
furnish  said  material  for  making  said  connection  and 
put  the  same  in  place,  or  after  the  building  of  such 
switch,  shall  fail  or  refuse  to  operate  the  same,  such 
railroad  company  failing  or  refusing  for  a  reasonable 
time,  shall  forfeit  and  pay  to  the  party  or  corporation 
aggrieved,  the  sum  of  five  hundred  dollars  for  each 
and  every  offense,  to  be  recovered  by  civil  action  in 
any  court  of  competent  jurisdiction;  and  every  day  of 
such  refusal  on  the  part  of  the  railroad  company  to 
operate  such  switch  as  aforesaid,  after  such  demand 
is  made,  shall  be  deemed  a  separate  offense. 

§  34.  As  used  in  this  article,  the  term  "  transpor- 
tation company"  shall  include  any  company,  corpora- 
tion, trustee,  receiver,  or  any  other  person  owning, 
leasing,  or  operating  for  hire,  a  railroad,  street  rail- 
way, canal,  steamboat  line,  and  also  any  freight-car 
company,  car  association,  express  company,  sleeping- 
car  company,  car  corporation,  or  company,  trustee  or 
person  in  any  way  engaged  in  such  business  as  a 
common  carrier  over  a  route  acquired  in  whole  or 
in  part  under  the  right  of  eminent  domain,  or  under 
any  grant  from  the  government  of  the  United  States; 
the  term  "rate"  shall  be  construed  to  mean  rate  of 
charge  for  any  service  rendered,  or  to  be  rendered; 
the  terms  "rate,"  "charge"  and  "regulation,"  shall 
include  joint  rates,  joint  charges,  and  joint  regulations, 
respectively;  the  term  "transmission  company"  shall 


§  33  CONSTITUTIONAL   PROVISIONS.  49 

« 

include  any  company,  receiver  or  other  person,  owning, 
leasing,  or  operating  for  hire  any  telegraph  or  tele- 
phone line;  the  term  ''freight"  shall  be  construed  to 
mean  any  property  transported  or  received  for  trans- 
portation, by  any  transportation  company.  The  term 
"public  service  corporation"  shall  include  all  trans- 
portation and  transmission  companies,  all  gas,  electric 
light,  heat,  and  power  companies,  and  all  persons 
authorized  to  exercise  the  right  of  eminent  domain, 
or  to  use  or  occupy  any  right  of  way,  street,  alley,  or 
public  highway,  whether  along,  over,  or  under  the 
same,  in  a  manner  not  permitted  to  the  general  public ; 
the  term  "person"  as  used  in  this  article,  shall  in- 
clude individuals,  partnerships  and  corporations,  in 
the  singular  as  well  as  plural  number;  the  term 
"bond"  shall  mean  all  certificates  or  written  evidences 
of  indebtedness  issued  by  any  corporation  and  secured 
by  mortgage  or  trust  deed.  The  term  "frank"  shall 
mean  any  writing  or  token  issued  by  or  under  author- 
ity of  a  transmission  company,  entitling  the  holder 
to  any  service  from  such  company  free  of  charge. 

The  provisions  of  this  article  shall  always  be  so 
restricted  in  their  application  as  not  to  conflict  with 
any  of  the  provisions  of  the  constitution  of  the  United 
States,  and  as  if  the  necessary  limitations  upon  their 
interpretation  had  been  herein  expressed  in  each 
case.26 

§  33.  Oregon  Constitution — (a)  Distribution  of 
Powers  of  Government. — The  powers  of  the  govern- 
ment shall  be  divided  into  three  separate  departments, 
the  legislative,  the  executive  (including  the  adminis- 
trative), and  the  judicial;  and  no  person  charged  with 
official  duties  under  one  of  these  departments  shall 

25  Okl.   Const.   1907,   art.   X. 

4 


50  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §§  34-36 


* 


exercise  any  of  the  functions  of  another,  except  as  in 
this  constitution  expressly  provided.26 

§  34.     (b)     Corporation  Control. — There  is  no 

provision  in  the  constitution  relative  to  the  control  of 
railroads  and  other  public  utilities. 

§35.  Texas  Constitution — (a)  Distribution  of 
Powers  of  Government. — There  is  no  especial  distribu- 
tion of  powers  further  than  provision  for  legislative, 
executive  and  judicial  departments  in  articles  III,  IV 
and  V  of  that  instrument.27 

§  36.  (b)  Corporation  Control — (1)  Rail- 
roads.— §  1.  Any  railroad  corporation  or  association, 
organized  under  the  law  for  the  purpose,  shall  have 
the  right  to  construct  and  operate  a  railroad  between 
any  points  within  this  state,  and  to  connect  at  the 
state  line  with  railroads  of  other  states.  Every  rail- 
road company  shall  have  the  right,  with  its  road,  to 
intersect,  connect  with,  or  cross  any  other  railroad; 
and  shall  receive  and  transport  each  the  other's  pas- 
sengers, tonnage,  and  cars,  loaded  or  empty,  without 
delay  or  discrimination,  under  such  regulations  as 
shall  be  prescribed  by  law. 

§  2.  Railroads  heretofore  constructed,  or  that  may 
hereafter  be  constructed,  in  this  state  are  hereby  de- 
clared public  highways,  and  railroad  companies  com- 
mon carriers.  The  legislature  shall  pass  laws  to 
correct  abuses  and  prevent  unjust  discrimination  and 
extortion  in  the  rates  of  freight  and  passenger  tariffs 
on  the  different  railroads  in  this  state;  and  shall  from 
time  to  time  pass  laws  establishing  reasonable  maxi- 
mum rates  of  charges  for  the  transportation  of  pas- 

26  Or.   Const.  1857,  art.  III. 

27  Tex.  Const.  1876. 


§  3G  CONSTITUTIONAL  PROVISIONS.  51 

sengers  and  freight  on  said  railroads,  and  enforce  all 
such  laws  by  adequate  penalties. 

§  3.  Every  railroad  or  other  corporation,  organ- 
ized or  doing  business  in  this  state  under  the  laws  or 
authority  thereof,  shall  have  and  maintain  a  public 
office  or  place  in  this  state  for  the  transaction  of  its 
business,  where  transfers  of  stock  shall  be  made,  and 
where  shall  be  kept,  for  inspection  by  the  stockhold- 
ers of  such  corporations,  books,  in  which  shall  be  re- 
corded the  amount  of  capital  stock  subscribed,  the 
names  of  the  owners  of  the  stock,  the  amounts  owned 
by  them  respectively,  the  amount  of  stock  paid,  and 
by  whom,  the  transfer  of  said  stock,  with  the  date  of 
the  transfer,  the  amount  of  its  assets  and  liabilities, 
and  the  names  and  places  of  residence  of  its  officers. 
The  directors  of  every  railroad  company  shall  hold 
one  meeting  annually  in  this  state,  public  notice  of 
which  shall  be  given  thirty  days  previously,  and  the 
president,  or  superintendent  shall  report  annually, 
under  oath,  to  the  comptroller  or  governor,  their  acts 
and  doings,  which  report  shall  include  such  matters 
relating  to  railroads  as  may  be  prescribed  by  law. 
The  legislature  shall  pass  laws  enforcing  by  suitable 
penalties  the  provisions  of  this  section. 

§  4.  The  rolling  stock  and  all  other  movable  prop- 
erty belonging  to  any  railroad  company  or  corporation 
in  this  state  shall  be  considered  personal  property, 
and  its  real  and  personal  property,  or  any  part 
thereof,  shall  be  liable  to  execution  and  sale  in  the 
same  manner  as  the  property  of  individuals;  and  the 
legislature  shall  pass  no  laws  exempting  any  such 
property  from  execution  and  sale. 

§  5.  No  railroad  or  other  corporation,  or  the 
lessees,  purchasers,  or  managers  of  any  railroad  cor- 
poration, shall  consolidate  the  stock,  property,  or 
franchises  of  such  corporation,  with,  or  lease  or  pur- 


52  CALIFORNIA   PUBLIC   UTILITIES   ACT.  §  37 

chase  the  works  or  franchises  of,  or  in  any  way  con- 
trol any  railroad  corporation  owning  or  having  under 
its  control  a  parallel  or  competing  line;  nor  shall  any 
officer  of  such  railroad  corporation  act  as  an  officer 
of  any  other  railroad  corporation  owning  or  having 
the  control  of  a  parallel  or  competing  line. 

§  6.  No  railroad  company  organized  under  the  laws 
of  this  state  shall  consolidate,  by  private  or  judicial 
sale  or  otherwise,  with  any  railroad  company  organ- 
ized under  the  laws  of  any  other  state  or  of  the  United 
States. 

§  7.  No  law  shall  be  passed  by  the  legislature 
granting  the  right  to  construct  and  operate  a  street 
railroad  within  any  city,  town,  or  village,  or  upon  any 
public  highway,  without  first  acquiring  the  consent 
of  the  local  authorities  having  control  of  the  street 
or  highway  proposed  to  be  occupied  by  such  street 
railroad. 

§  8.  No  railroad  corporation  in  existence  at  the 
time  of  the  adoption  of  this  constitution  shall  have 
the  benefit  of  any  future  legislation,  except  on  con- 
dition of  complete  acceptance  of  all  the  provisions  of 
this  constitution  applicable  to  railroads. 

§  9.  No  railroad  hereafter  constructed  in  this  state 
shall  pass  within  a  distance  of  three  miles  of  any 
county  seat  without  passing  through  the  same,  and 
establishing  and  maintaining  a  depot  therein,  unless 
prevented  by  natural  obstacles,  such  as  streams,  hills, 
or  mountains:  Provided,  such  town  or  its  citizens  shall 
grant  the  right  of  way  through  its  limits  and  sufficient 
ground  for  ordinary  depot  purposes.28 

§  37. (2)     Private    Corporations. — §  3. 

The  right  to  authorize  and    regulate    freights,  tolls, 

28  Tex.  Const.  1876,  art.  X 


§  38  CONSTITUTIONAL   PROVISIONS.  53 

wharfage,  or  fares  levied  and  collected,  or  proposed  to 
be  levied  and  collected,  by  individuals,  companies,  or 
corporations,  for  the  use  of  highways,  landings, 
wharves,  bridges,  and  ferries  devoted  to  public  use, 
has  never  been  and  shall  never  be  relinquished  or 
abandoned  by  the  state,  but  shall  always  be  under 
legislative  control  and  depend  upon  legislative  au- 
thority. 

§  4.  The  first  legislature  assembled  after  the  adop- 
tion of  this  constitution  shall  provide  a  mode  of  pro- 
cedure by  the  attorney  general  and  district  or  county 
attorneys,  in  the  name  and  behalf  of  the  state,  to  pre- 
vent and  punish  the  demanding  and  receiving  or  col- 
lection of  any  and  all  charges  as  freight,  wharfage, 
fares,  or  tolls,  for  the  use  of  property  devoted  to  the 
public,  unless  the  same  shall  have  been  specially  au- 
thorized by  law. 

§  5.  All  laws  granting  the  right  to  demand  and  col- 
lect freights,  fares,  tolls,  or  wharfage,  shall  at  all  times 
be  subject  to  amendment,  modification,  or  repeal  by 
the  legislature. 

§  6.  No  corporation  shall  issue  stock  or  bonds  ex- 
cept for  money  paid,  labor  done,  or  property  actually 
received,  and  all  fictitious  increase  of  stock  or  indebt- 
edness shall  be  void. 

§  7.  Nothing  in  this  article  shall  be  construed  to 
devest  or  affect  rights  guaranteed  by  any  existing 
grant  or  statute  of  this  state  or  of  the  republic  of 
Texas.29 

§  38.  Washington  Constitution — (a)  Distribution 
of  Powers  of  Government. — The  present  constitution 
recognizes  without  a  distinct  apportionment,  the 
division  of  the  government  into  the  legislative  depart- 

2»  Tex.  Const.  1876,  art.  XII. 


54  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  39 

merit  (article  II),  the  executive  department  (article 
III),  and  the  judicial  department  (article  IV).30 

§  39.     (b)     Corporation    Control— §  13.     All 

railroads,  canals,  and  other  transportation  companies 
are  declared  to  be  common  carriers  and  subject  to 
legislative  control 

§  14.  No  railroad  company  or  other  common  car- 
rier shall  combine  or  make  any  contract  with  the 
owner  of  any  vessel  that  leaves  port  or  makes  port 
within  this  state,  or  with  any  common  carrier,  by 
which  combination  or  contract  the  earnings  of  one 
doing  the  carrying  are  to  be  shared  by  the  other  not 
doing  the  carrying. 

§  15.  No  discrimination  in  charge  or  facilities  for 
transportation  shall  be  made  by  any  railroad  or  other 
transportation  company  between  places  or  persons  or 
in  the  facilities  for  the  transportation  of  the  same 
classes  of  freight  or  passengers  within  this  state,  or 
coming  from  or  going  to  another  state.  Persons  and 
property  transported  over  any  railroad  or  by  any  other 
transportation  company,  or  individual,  shall  be  deliv- 
ered at  any  station,  landing  or  port  at  charges  not 
exceeding  the  charges  for  the  transportation  of  per- 
sons and  property  of  the  same  class,  in  the  same  direc- 
tion, to  any  more  distant  station,  port  or  landing. 
Excursion  and  commutation  tickets  may  be  issued  at 
special  rates. 

§  18.  The  legislature  shall  pass  laws  establishing 
reasonable  maximum  rates  of  charge  for  the  trans- 
portation of  passengers  and  freight,  and  to  correct 
abuses  and  to  prevent  discrimination  and  extortion 
in  the  rates  of  freight  and  passenger  tariffs  on  the 
different  railroads  and  other  common  carriers,  in  the 
state,  and  shall  enforce  such  laws  by  adequate  penal- 

30  Wash.  Const.  1889. 


§  39  CONSTITUTIONAL   PROVISIONS.  55 

ties.  A  railroad  and  transportation  commission  may 
be  established,  and  its  powers  and  duties  fully  denned 
by  law. 

§  20.  No  railroad  or  other  transportation  company 
shall  grant  free  passes,  or  sell  tickets  or  passes  at  a 
discount,  other  than  as  sold  to  the  public  generally, 
to  any  member  of  the  legislature,  or  to  any  person 
holding  any  public  office  within  this  state.  The  legis- 
lature shall  pass  laws  to  carry  this  provision  into 
effect. 

§  21.  Railroad  companies,  now  or  hereafter  organ- 
ized or  doing  business  in  this  state  shall  allow  all  ex- 
press companies  organized  or  doing  business  in  this 
state  transportation  over  all  lines  of  railroad,  owned 
or  operated  by  such  companies  upon  equal  terms  with 
any  other  express  company;  and  no  railroad  corpora- 
tion organized  or  doing  business  in  this  state  shall 
allow  any  express  corporation  or  company  any  facil- 
ities, privileges,  or  rates  for  transportation  of  men 
or  materials  or  property  carried  by  them,  or  for  doing 
the  business  of  such  express  companies,  not  allowed 
to  all  express  companies. 

§  22.  Monopolies  and  trusts  shall  never  be  allowed 
in  this  state,  and  no  incorporated  company,  copart- 
nership, or  association  of  persons  in  this  state  shall 
directly  or  indirectly  combine  or  make  any  contract 
with  any  other  company,  foreign  or  domestic,  through 
their  stockholders  or  the  trustees,  or  assignees  of  such 
stockholders,  or  with  any  copartnership  or  association 
of  persons,  or  in  any  manner  whatever  for  the  purpose 
of  fixing  the  price  or  limiting  the  production  or  regu- 
lating the  transportation  of  any  product  or  commodity. 
The  legislature  shall  pass  laws  for  the  enforcement 
of  this  section  by  adequate  penalties  and  in  case  of 


56  CALIFORNIA   PUBLIC   UTILITIES   ACT.  §§  40,  41 

incorporated  companies,  if  necessary  for  that  purpose, 
may  declare  a  forfeiture  of  the  franchises.31 

§40.  Wisconsin  Constitution — (a)  Distribution 
of  Powers  of  Government. — Divisions  of  power  not 
specifically  made,  but  the  common  divisions  into  legis- 
lative, executive  and  judicial  is  recognized  in  articles 
IV,  V  and  VII;  the  administrative  being  coupled  with 
the  executive,  article  VI.82 

§  41.    (b)     Corporation  Control. — There  is  no 

provision  in  the  constitution  relative  to  the  control  of 
railroads  and  other  public  utilities. 

si  Wash.  Const.  1889,  art.  XII. 
32  Wis.  Const.   1848. 


§  42  CONSTITUTIONALITY   OF   ACT.  57 

CHAPTER  III. 

CONSTITUTIONALITY   OF   ACT. 

§  42.  Introductory. 

§  43.  The  California  Public  Utilities  Act. 

§  44.  Functions    and    Powers    of    Commission. 

§  45.  Legislative   Powers. 

§  46.  Charter   Rights   of   Corporations. 

§  47.  Delegation    of   Powers    by   Legislature — Generally. 

§  48.  Want   of   Constitutional   Provision. 

§  49.  Authority   to    Delegate    as   to    Acts    not    Legislative. 

§  50.  Delegation  as  to  Details  and  Enforcement. 

§  51.  Discretionary  Powers  cannot  be  Delegated. 

§  52.  Quasi-judicial   Tribunal. 

§  53.  Commission    Acts — Alabama. 

§  54.  Illinois. 

§  55.  Iowa. 

§  56.  Kansas. 

§  57.  Minnesota. 

§  58.  Mississippi. 

§  59.  North   Carolina. 

§  60.  Oklahoma. 

§  61.  Oregon. 

§  62.  Texas. 

§  63.  Wisconsin. 

§  64.  Distribution  of  Powers  of  Government. 

§  65.  Burdening  Interstate  Commerce. 

§  66.  Foreign   Corporations. 

§  67.  Railroads. 

§  68.  Subjects  of  Interstate   Commerce  Regulation. 

§  69.  Canvassers  and  Solicitors. 

§  70.  Carriage  of   Expressage. 

§   71.  Intoxicating   Liquors. 

§  72.  Natural  Gas. 

§  73.  Original  Packages. 

§  74.  Pipe-line. 

§   75.  Sale  by  Sample. 

§  76.  Hawkers  and  Peddlers  and  "Itinerant  Venders." 

§  77.  Telegraph   Companies. 

§  78.  Waters. 

§  79.  Loss  of  Character  of  Interstate  Commerce. 

§  80.  Original  Packages. 

§  81.  Quarantine    Regulation. 

§  42.     Introductory. — It  is  not  the  purpose  or  object 
of  this  chapter  to  give  an  exhaustive    consideration 


58  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  43 

to  the  question  of  the  constitutionality  of  legislation 
creating  Boards  of  Railroad  Commissions,  or  other  like 
boards  with  the  same  power  and  design  to  serve  the 
same  or  similar  ends.  The  purpose  is  simply  to  col- 
lect, and  arrange  under  appropriate  heads  or  divisions, 
some  of  the  decisions  in  litigation  growing  out  of 
legislation  establishing  such  Commissions,  in  which 
the  reasons  are  given  for  holding  the  statute  consti- 
tutional or  unconstitutional,  as  the  case  may  be. 

§  43.  The  California  Public  Utilities  Act. —  A 
highly  important  question  arising  under  this  act  is: 
Does  the  act  combine  in  a  legal  and  constitutional 
sense,  legislative,  executive,  and  judicial  functions  of 
government,  and  empower  the  Railroad  Commission 
to  exercise  the  same?  In  the  absence  of  any  adjudi- 
cation by  the  state  courts  upon  this  question  we  have 
to  look  to  decisions  of  the  courts  of  other  states,  and 
of  the  federal  courts,  in  which  acts  essentially  sim- 
ilar and  largely  identical  with  the  California  Act  were 
under  consideration. 

The  Public  Utilities  Act  of  California,  in  common 
with  the  Oregon  Railroad  Commission  Act,  and  other 
acts  of  kindred  character  passed  in  other  states,  con- 
tains many  features  and  regulations  quite  in  common 
with  the  Interstate  Commerce  Act  of  Congress,1  and 
its  amendments.2  The  distinctive  features  between 
the  state  acts  and  the  federal  act  consist  in  the  fact 
that  in  the  latter  the  Commission  is  empowered  to 
fix  the  rates,  which  rates  when  fixed  by  it  are  made 
prima  facie  reasonable  and  just,  and  must  be  con- 
formed to,  and,  if  controverted  by  an  interested  party 
or  corporation,  the  burden  is  cast  upon  such  person  or 
corporation  to  institute  the  proper  proceedings  or  suit 

i  Act  February  4,  1887,  c.  104;  24  Stats,  at  Large,  379;  U.  S.  Comp. 
Stats.  1901,  3154;  3  Fed.  Stats.  Ann.  809-850. 
2  1  Supp.  U.  S.  Rev.  Stats.,  pp.  520,  &84,  891. 


§  43  CONSTITUTIONALITY   OF   ACT.  59 

and  to  overcome  the  prima  facie  case  by  proof  to  the 
contrary;  while  in  the  state  acts  the  Commission's 
orders  and  directions  as  to  changes  to  be  made  in 
rates,  where  found  to  be  unreasonable  or  unjust,  the 
rates  named  by  the  Commission  are  deemed  to  be 
prima  facie  reasonable  and  just,  and  where  an  inter- 
ested party  or  corporation  refuses  to  obey  the  orders 
of  the  Commission  fixing  the  rates,  the  Commission  is 
authorized  to  enforce  obedience  by  suit,  in  which  the 
party  or  corporation  has  the  burden  of  overcoming 
the  prima  facie  case  of  the  reasonableness  of  the  rates 
directed  by  the  Commission  for  adoption,  and  must  do 
scf  in  its  defense  or  the  Commission's  orders  will 
stand.  The  matter  of  difference  consists  principally 
in  the  procedure.8 

That  the  express  purpose  of  the  California  Act  is 
to  regulate  transportation  of  commerce  and  common 
carriers  within  the  state,  and  as  to  state  business  only, 
is  apparent  both  from  the  title  of  the  act  and  from 
the  provisions  thereof.4  It  applies  solely  to  the  state 
business,  and  does  not  seek  to  regulate  commerce  or 
traffic  originating  or  destined  beyond  the  borders  of 
the  state,  and  for  this  reason  it  is  thought  to  be  a 
valid  exercise  of  the  powers  of  the  legislature.6  By 
reason  of  the  fact  that  the  California  Act  does  not 
attempt  to  regulate  or  interfere  with  interstate  com- 
merce, it  is  thought  not  to  be  open  to  the  objection 
that  it  is  an  encroachment  upon  the  constitutional 
authority  of  Congress  in  that,  in  practical  applica- 
tion, it  will  interfere  with  interstate  commerce.8 

3  See  Oregon  R.  &  Nav.  Co.  v.  Campbell,  173  Fed.  957,  970. 

*  See  Oregon  R.  &  Nav.  Co.  v.  Campbell,  173  Fed.  957,  970. 

e  See  State  ex  rel.  Taylor  v.  Missouri  Pac.  R.  Co.,  76  Kan.  467,  92 
Pac.  606. 

See,  also,  authorities  cited  in  the  discussion  of  sections  53-63,  this 
chapter. 

«  See  Oregon  R.  &  Nav.  Co.  v.  Campbell,  173  Fed.  957,  978    et  seq. 


60  CALIFORNIA   PUBLIC    UTILITIES  ACT.  §  44 

Nor  is  the  act  unconstitutional  upon  the  ground 
that  it  provides  for  the  taking  of  the  property  of 
persons  or  corporations  without  due  process  of  law.7 

§  44.  Functions  and  Powers  of  the  Commis- 
sion.— The  functions  and  powers  of  the  Railroad  Com- 
mission, under  the  California  Act,  are  administrative 
or  ministerial,  not  legislative  or  judicial,8  because  the 
authority  conferred  relates  merely  to  the  execution 
of  the  law.9    The   granting  of  this   power,   as   will 

7  State  ex  rel.  Taylor  v.  Missouri  Pac.  E.  Co.,  76  Kan.  467,  92< 
Pac.  606. 

s  Chicago,  B.  &  Q.  E.  Co.  v.  Jones,  149  111.  361,  37  N.  E.  247,^1 
Am.  St.  Bep.  278,  24  L.  B.  A.  141;  Missouri  K.  &  T.  E.  Co.  v.  State,  25 
Okl.  437,  106  Pac.  858;  Atchison,  T.  &  S.  F.  E.  Co.  v.  State,  28  Okl. 
805,  115  Pac.  873;  State  ex  rel.  Board  of  Eailroad  Commrs.  v.  Duluth, 
W.  &  P.  E.  Co.,  25  S.  D.  106,  125  N.  W.  565;  Eailroad  Commission 
of  Texas  v.  Chicago,  E.  I.  &  G-.  E.  Co.,  102  Tex.  393,  117  S.  W.  794. 

"A  Board  of  Eailroad  Commissioners  is  merely  an  administrative 
board  created  by  the  state  for  carrying  into  effect  the  will  of  the 
state  as  expressed  by  its  legislature."  Mr.  Justice  Brewer,  in  Eail- 
road Commission  Cases,  116  U.  S.  307,  6  Sup.  Ct.  334,  29  L.  ed.  636. 
See  Morgan's  La.  &  T.  B.  &  S.  S.  Co.  v.  Eailroad  Commission,  109 
La.  247,  33  So.  24;  Eeagan  v.  Farmers'  L.  &  T.  Co.,  154  U.  S.  394, 
14  Sup.  Ct.  1047,  38  L.  ed.  1114. 

An  act  creating  a  Eailroad  Commission  and  conferring  upon  it 
powers  to  regulate  rates  does  not  confer  upon  such  board  executive 
or  judicial  powers,  notwithstanding  the  fact  the  board  is  required 
to  exercise  judgment  and  discretion,  and  to  make  orders  for  the 
regulation  and  control  of  railroad  and  other  common  carriers.  State 
ex  rel.  Taylor  v.  Northern  Pac.  E.  Co.,  76  Kan.  467,  92  Pac.  606. 

The  Eailroad  Commission  is  not  invested  with  judicial  powers  not- 
withstanding the  fact  that  it  is  required  to  exercise  judgment  and 
discretion  and  to  make  orders  for  the  regulation  and  control  of  rail- 
roads and  other  common  carriers  and  public  utilities.  State  ex  rel. 
Taylor  v.  Missouri  Pac.  E.   Co.,   761  Kan.   467,  92  Pac.  606. 

»  Chicago,  B.  &  Q.  E.  Co.  v.  Jones,  149  111.  361,  37  N.  E.  247,  41 
Am.  St.  Eep.  278,  24  L.  E.  A.  141. 

Where  the  powers  of  a  railroad  or  other  Commission  of  Public 
Utilities  are  unmistakably  limited  to  the  regulation  of  carriers  and 
rates  between  points  within  the  state  (as  in  Oregon  Eailroad  Commis- 
sion Act,  Laws  1907,  p.  67),  any  order  made  by  such  body  under  its 
authority  conferred  by  such  statute  is  presumptively  limited  by  the 
same    restrictions,    and    the   fact   that    such   order   may   incidentally 


§  44  CONSTITUTIONALITY   OF   ACT.  CI 

be  seen  in  the  next  section,  is  clearly  within  the 
jurisdiction  of  the  legislature,  for  the  reason  that  the 
granting  of  legislative  power  to  do  certain  things  car- 
ries with  it  the  power  to  use  all  proper  and  neces- 
sary means  to  accomplish  the  end  sought.10  The 
constitutional  provision  conferring  power  upon  the 
legislature  to  regulate  railroad  rates  and  passenger 
tariffs  is  for  the  purpose  of  preventing  unjust  discrim- 
ination and  requiring  reasonable  and  just  freight  and 
tariff  rates,  makes  it  the  duty  of  the  legislature  to 
pass  laws  in  furtherance  of  this  provision  for  the  pur- 
pose of  giving  protection  to  citizens  against  unjust 
rates  for  transportation  of  freights  and  passengers 
over  the  railroads  of  the  state,  and  to  prevent  unjust 
discrimination  even  though  the  rates  charged  are  rea- 
sonable and  just.11 

No  valid  objection  can  be  made  against  the  appoint- 
ment of  a  Railroad  Commission  and  a  delegation  to  it 
of  the  power  to  fix  rates,  etc.,  on  account  of  the  gen- 
eral features  of  such  act;  those  by  which  the  state 
has  created  the  Railroad  Commission  and  intrusted  it 
with  the  duty  of  prescribing  rates  of  fare  and  freight, 
as  well  as  other  regulations  for  the  management  of 
the  railroads  of  the  state.12  Under  the  act,  the  Rail- 
induce  a  change  in  the  movement  of  interstate  commerce  or  a  change 
in  interstate  rates  will  not  render  such  order,  or  the  statute  under 
which  it  is  made,  unconstitutional  as  an  infringement  of  the  com- 
merce clause  in  the  federal  constitution.  Oregon  R.  &  Nav.  Co.  v. 
Campbell,   173   Fed.   957. 

io  Chicago,  B.  &  Q.  E.  Co.  v.  Jones,  149  111.  361,  37  N.  E.  247,  41 
Am.  St.  Rep.  278,  24  L.  R.  A.  141. 

ii  Georgia  R.   Co.  v.  Smith,  70  Ga.  694. 

i2  See  remarks  of  Mr.  Justice  Brewer  in  Railroad  Commission  Cases, 
116  U.  S.  307,  6  Sup.  Ct.  334,  29  L.  ed.  636. 

Where  the  rate  or  charge  fixed  and  the  actual  transportation  is 
exclusively  confined  to  the  limits  of  the  territory  of  the  state,  it 
is  wholly  within  the  power  of  the  Commission  under  the  act,  for  the 
reason  that  it  does  not  affect  interstate  commerce,  but  unless  ex- 
clusively within  the  state,  it  is  subject  to  the  constitutional  provision 
concerning  commerce  among  states.  Wabash,  St.  L.  &  P.  R.  Co.  v. 
Illinois,  118  U.  S.  557,  7  Sup.  Ct.  4,  30  L.  ed.  244. 


62  CALIFORNIA   PUBLIC    UTILITIES  ACT.  §  44 

road  Commissioners  are  officers  appointed  to  carry 
into  execution  the  laws  passed  by  the  legislature,  are 
constitutional  officers,13  and  the  power  conferred  upon 
such  Commission  to  fix  rates,  etc.,  is  administrative 
in  its  character,  has  no  relation  to  or  dependence  upon 
the  executive  or  legislative  power,  or  either  of  them, 
as  one  of  the  three  governmental  powers,  because  the 
function  of  such  a  Commission  is  simply  that  of 
carrying  into  effect  the  legislative  will,  and  its  oper- 
ation is  a  part  of  the  legislative  act.14 

is  Georgia  R.  Co.  v.  Railroad  Commission,  70  Ga.  694. 

I*  Reagan  v.  Farmers'  L.  &  T.  Co.,  154  U.  S.  362,  14  Sup.  Ct.  1047, 
38  L.  ed.  1014;  Railroad  Commission  Cases,  116  U.  S.  307,  6  Sup.  Ct. 
334,  29  L.  ed.  636;  State  ex  rel.  Taylor  v.  Missouri  Pac.  R.  Co.,  76 
Kan.  467,  476,  92  Pac.   606. 

Regarding  the  power  of  the  Commission  under  the  act  to  exercise 
executive  functions  may  be  considered  the  case  determining  that 
question  raised  under  the  Oregon  Act.  Under  the  constitution  of 
Oregon  the  executive  department  of  government  includes  also  the 
administrative  (see  ante,  c.  2,  §  33),  and  this  widens  very  -largely 
the  scope  of  the  functions  of  that  department  under  the  Oregon  con- 
stitution. There  is  no  such  enlargement  of  the  scope  of  the  functions 
of  that  department  under  the  provisions  of  the  California  statute. 
(See  post,  c.  6,  §  112  et  seq.).  Under  the  Oregon  Railroad  Commis- 
sion Act,  the  Commission  is  charged  with  supervising  and  doing  many 
things  which  are  merely  administrative.  Some  are  possibly  executive 
upon  a  strict  division  of  powers.  But  this  alone  ought  not  to  invali- 
date the  law,  for  the  reason  that  it  is  impossible  to  fix  any  exact 
boundary  line  dividing  the  constitutional  powers;  that  is  to  say,  in 
providing  for  the  innumerable  exigencies  arising  for  governmental  su- 
pervision and  control,  it  is  not  always  possible  to  place  the  authority 
in  every  detail  with  the  appropriate  department  of  government.  So 
that,  as  to  the  minor  matters,  it  ought  not  to  be  considered  inimical 
to  the  constitution  to  give  into  the  charge  of  one  department  what 
appropriately  belongs  to  another.  The  essential  thing  is  that 
there  shall  not  be  a  usurpation  of  the  functions  of  one  department 
by  another  department,  so  as  practically  to  destroy  or  seriously 
to  endanger  the  policy  of  a  tripartite  division  of  powers.  There 
are  many  things  that  belong  absolutely  to  the  one  department  or 
the  other.  Where  these  are  plain  and  important,  they  should  be  as- 
signed to  the  appropriate  department  for  administration,  and  if  not 
so  assigned,  the  law  should  not  stand,  because  of  the  hurtful  encroach- 
ment of  the  proper  domain  of  the  proper  department.  But  where 
the  assignment  of  power  is  scarcely  distinguishable,  or  where  it  works 


§  45  CONSTITUTIONALITY   OP   ACT.  63 

§  45.  Legislative  Powers. — The  state  legislature 
may  exercise  all  powers  not  conferred  upon  the  fed- 
eral government,  or  which  are  not  prohibited  by  the 
constitution.16  In  the  absence  of  congressional  pro- 
hibition,18 a  state  may  enact  laws  regulating  matters 

no  practical  encroachment  upon  the  functions  of  another  depart- 
ment, there  is  no  reason  why  the  law  should  not  stand.  Oregon  R. 
&  Nav.  Co.  v.  Campbell,  173  Fed.  957,  977. 

is  Ruggles  v.  People,  91  111.  256. 

"The  legislature  may  legislate  upon  any  and  all  subjects  not  pro- 
hibited by  express  words  or  by  necessary  implications.  The  courts 
look  to  the  constitution  to  determine,  not  what  it  authorizes,  but 
what  it  forbids."  State  ex  rel.  Taylor  v.  Northern  Pac.  R.  Co.,  76 
Kan.  467,  489,  92  Pac.  606;  citing  Township  of  Pine  Grove  v.  Talcott, 
86  U.  S.  666,  22  L.  ed.  227;  State  v.  Forkner,  94  Iowa,  1,  62  N.  W. 
772,  28  L.  R.  A.  206. 

The  state  legislature  may  properly  exercise  all  the  reserve  powers — 
that  is  to  say,  those  powers  not  delegated  to  the  federal  government, 
save  only  those  which  the  people  have  withheld.  The  sole  power 
for  the  regulation  of  commerce  within  the  state  resides  in  the  state 
legislature;  and  this  power  is  expressly  recognized  by  Congress  in  the 
passage  of  the  act  regulating  commerce  of  February  4,  1887  (1  Supp. 
U.  S.  Eev.  Stats.,  p.  529).  Oregon  R.  &  Nav.  Co.  v.  Campbell,  173 
Fed.  957. 

i«  Congress,  in  its  discretion,  may  take  entire  charge  of  the  subject 
of  the  equipment,  etc.,  of  interstate  cars,  and  establish  such  regula- 
tions as  are  necessary  and  proper  for  the  protection  of  those  en- 
gaged in  interstate  commerce;  and  where  Congress  fails  to  make 
any  provision  or  regulations  touching  a  matter,  the  state  may 
properly  do  so  in  so  far  as  the  traffic  is  confined  within  its  borders. 
Chicago,  R.  I.  &  P.  R.  Co.  v.  Arkansas,  219  U.  S.  453,  31  Sup.  Ct.  275, 
55  L.  ed.  290.  See  Mobile  County  v.  Kimball,  102  U.  S.  691,  26 
L.  ed.  238;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Hefley,  158  U.  S.  98,  15  Sup. 
Ct.  802,  39  L.  ed.  910;  Western  Union  Tel  Co.  v.  James,  162  U.  S. 
656,  16  Sup.  Ct.  934,  40  L.  ed.  1107;  Chicago,  M.  &  St.  P.  R.  Co.  v. 
Solan,  169  U.  S.  133,  18  Sup.  Ct.  289,  42  L.  ed.  688;  Western  Union 
Tel.  Co.  v.  Kansas,  216  U.  S.  27,  30  Sup.  Ct.  190,  54  L.  ed.  366;  Reid 
v.  Colorado,  187  U.  S.  137,  23  Sup.  Ct.  92,  47  L.  ed.  108,  12  Am. 
Cr.  Rep.  506;  Missouri,  K.  &  T.  R.  Co.  v.  Haber,  169  U.  S.  613,  18 
Sup.  Ct.   488,  42  L.  ed.   878. 

As  to  the  scope  of  the  commerce  clause  of  the  federal  constitution 
as  affecting  regulation  of  instrumentalities  and  regulating  the  dis- 
tribution of  railroad  fuel  cars,  see  Interstate  Commerce  Commission 
v.  Illinois  Cent.  R,  Co.,  215  U.  S.  452,  30  Sup.  Ct.  155,  54  L.  ed.  280. 

Carrier  engaged  in  interstate  commerce  cannot  lawfully  charge, 
collect  or  receive  anything  except  mouey  for  transportation.     Louis- 


64  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  45 

which  are  legal  in  their  nature,  which  laws  tend  to 
enforce  the  proper  performance  by  interstate  car- 
riers of  duties  arising  within  the  state,  and  tending  to 
facilitate  traffic,  notwithstanding  the  fact  that  such 
state  laws  may  incidentally  affect  interstate  com- 
merce.17 Under  the  exercise  of  its  police  power,  the 
state  may  reasonably  regulate  as  to  the  place  and 
manner  of  the  delivery  of  merchandise,  moved  in  the 
channels  of  interstate  commerce,  so  long  as  such  regu- 
lations do  not  interfere  with  such  commerce.18 

The  power  of  the  state  to  regulate  and  control  the 
operation  of  railroads  and  other  carriers  within  the 
state  is  fixed  in  the  legislature;  the  extent  of  such 
control  and  regulation  must  be  left  to  the  legislature 
to    determine,  subject  always    to    the    constitutional 

ville  &  N.  E.  Co.  v.  Mottley,  219  U.  S.  467,  31  Sup.  Ct.  265,  55  L. 
ed.  297. 

it  St.  Louis  &  S.  F.  K.  Co.  v.  State,  26  Okl.  62,  107  Pac.  929.  See 
State  v.  Northern  Pac.  B.   Co.,  53   Wash.  673,  102  Pac.  876. 

See,  also,  post,  §  65,  this  chapter.  As  to  test  whether  Congress 
or  a  state  can  regulate  commerce  in  question,  see  Independent  T. 
L.  Co.  v.  Lake  Superior  Lumber  and  Box  Co.  (Wis.),  131  N.  W.  408. 

Interstate  railroads  and  employees  wholly  engaged  in  local  busi- 
ness are  not  affected  by  an  act  making  it  unlawful  for  any  carrier 
who  is  subject  to  the  act  to  permit  employees  to  remain  on  duty 
for  longer  than  a  prescribed  period.  Baltimore  &  O.  B.  Co.  v.  Inter- 
state Commerce  Commission,  221  U.  S.  612,  31  Sup.  Ct.  621,  55  L. 
ed.  878. 

Abrogation  of  fellow-servant  rule  as  to  railroad  employees  does 
not  offend  against  the  equal  protection  laws  clause  of  the  federal 
constitution  because  construed  as  applying  to  the  foreman  of  a  sec- 
tion crew  charged  with  keeping  track  in  repair.  Mobile,  J.  &  K. 
C.  B.  Co.  v.  Turnipseed,  219  U.  S.  35,  31  Sup.  Ct.  136,  55  L.  ed.  78. 
See  Louisville  &  N.  B.  Co.  v.  Melton,  218  U.  S.  36,  30  Sup.  Ct.  676, 
54  L.  ed.  921. 

As  to  regulation  by  Congress  of  liability  of  connecting  carriers, 
see  Atlantic  Coast  L.  E.  Co.  v.  Eiverside  Mills,  219  U.  S.  186,  31 
Sup.  Ct.   164,  55  L.   ed.   167. 

is  St.  Louis  &  S.  F.  B.  Co.  v.  State,  26  Okl.  62,  107  Pac.  929. 


§  45  CONSTITUTIONALITY   OF   ACT.  65 

guaranties  for  the  protection  of  property.19  The  con- 
stitution imposes  no  limitation  upon  the  power  of  the 
legislature  to  enact  laws.  Its  power  is  absolute  and 
plenary,20  subject  only  to  the  restriction  that  the  legis- 
lature shall  not  interfere  with  the  plenary  power  of 
Congress.21  "The  legislative  power  to  prescribe  rates 
which  railroad  companies  may  charge  for  the  car- 
riage  of  freight  or  passengers  22  exists  beyond  ques- 

i»  State  ex  rel.  Taylor  v.  Missouri  Pac.  R.  Co.,  76  Kan.  467,  92 
Pac.  606. 

As  to  legislative  control  over  corporations,  see  Current  Law,  vol. 
1,  p.  735;  vol.  3,  p.  893;  vol.  5,  p.  785;  vol.  7,  p.  884;  vol.  9,  p.  749; 
vol.   12,   p.   1551;   vol.   14,   p.   1582. 

As  to  police  regulation  of  electric  companies,  see  31  L.  E.  A.  807. 

20  See  Wadsworth  v.  Union  Pac.  R.  Co.,  18  Colo.  600,  33  Pac.  515, 
36  Am.  St.  Rep.  309,  23  L.  R.  A.  812.  See  Leavenworth  County  v. 
Miller,  7  Kan.  479,  12  Am.  Rep.  425;  Harding  v.  Funk,  8  Kan.  315; 
State  ex  rel.  Taylor  v.  Missouri  Pac.  R.  Co.,  76  Kan.  467,  488,  92 
Pac.  606. 

Authority  of  the  state  to  exercise  the  power  to  regulate  rates 
and  service  of  railroad  and  other  carriers  is  not  to  be  restricted  by 
mere  implication  from  the  express  provision  of  the  state  constitu- 
tion. See  Minneapolis,  St.  P.  &  Ste.  Marie  R.  Co.  v.  Railroad  Com- 
mission, 136  Wis.   146,   116  N.  W.  915. 

The  legislative  declaration  that  a  law  is  necessary  for  immediate 
preservation  of  public  peace,  health,  and  safety,  adding  an  emergency 
clause  to  put  it  in  operation,  is  not  refused  in  the  courts,  and  is 
not  an  infringement  of  the  above  provision  of  the  constitution. 
Cadderly  v.  Portland,  44  Or.  150,  74  Pac.  710. 

2i  See  authorities  ante,  c.  2,  footnote  7. 

22  See  10  Cent.  Dig.,  fol.  740,  §  82;  4  Den.  Dig.,  p.  1399,  §  61. 

A  railroad  should  from  the  public  nature  of  the  business  trans- 
acted by  it  and  the  interest  which  the  public  have  in  its  operation, 
be  subject,  as  to  its  said  business,  to  state  regulations,  which  may 
be  exeicised  either  directly  by  the  legislative  authority  or  by  ad- 
ministrative bodies  endowed  with  powers  to  that  end.  See  Chicago, 
B.  &  Q.  R.  Co.  v.  Iowa,  94  U.  S.  155,  sub  nom.  Chicago,  B.  &  Q.  R. 
Co.  v.  Cutts,  24  L.  ed.  94;  Peik  v.  Chicago  &  N.  W.  R.  Co.,  94  U.  S. 
164,  24  L.  ed.  97;  Chicago,  M.  &  St.  P.  R.  Co.  v.  Ackley,  94  U.  S.  179, 
24  L.  ed.  99;  Winona  &  St.  P.  R.  Co.  v.  Blake,  94  U.  S.  180,  24  L. 
ed.  99;  Stone  v.  Wisconsin,  94  U.  S.  181,  24  L.  ed.  102;  Ruggles  v. 
Illinois,  108  U.  S.  526,  2  Sup.  Ct.  832,  27  L.  ed.  818;  Stone  v.  Farmers' 
5 


66  CALIFORNIA   PUBLIC    UTILITIES   ACT. 


45 


tion,  and  its  exercise  has  been  uniformly  upheld  by 
the  courts,23  and  this  power  the  lawmakers  may  dele- 
gate   to  a  Commission,  which    has    been    frequently 

Loan  &  T.  Co.,  116  U.  S.  307,  6  Sup.  Ct.  334,  388,  1191,  29  L.  ed.  636; 

Stone  v.  Illinois  C.  R.  Co.,  116  U.   S.  347,  6  Sup.  Ct.  348,  29  L.  ed. 

650;    Stone   v.   New  Orleans   &  N.   E.   R.   Co.,   116  U.   S.   352,   6   Sup. 

Ct.   349,   29  L.   ed.   651;   Dow   v.  Beidelman,   125   U.   S.   680,   1   Inter. 

Com.  Rep.  56,  8  Sup.  Ct.  1928,  3-1  L.  ed.  841;   Charlotte,  C.  &  A.  R. 

Co.  v.  Gibbes,  142  U.  S.  386,  12  Sup.  Ct.  255,  35  L.  ed.  1051;  Chicago 

&  G.  T.  R.  Co.  v.  Wellman,  143  U.  S.  339,  12  Sup.  Ct.  400,  36  L.  ed. 

176;   Pearsall  v.   Great  Northern   R.   Co.,   161  U.   S.   646,  16   Sup.   Ct. 

705,  40  L.  ed.  838;  Louisville  &  N.  R.  Co.  v.  Kentucky,  161  U.  S.  677, 

16  Sup.  Ct.  714,  40  L.  ed.  849;  Wisconsin,  M.  &  F.  R.  Co.  v.  Jacobson, 

179  U.  S.  287,  21  Sup.  Ct.  115,  45  L.  ed.  194;  Minneapolis  &  St.  L. 

R.  Co.  v.  Minnesota,  186  U.  S.  257,  22  Sup.  Ct.  900,  46  L.  ed.  1151; 

Minneapolis  &  St.  L.  R.  Co.  v.  Minnesota,  193  U.  S.  53,  24  Sup.  Ct. 

396,  48  L.  ed.  614;  Chicago,  B.  &  Q.  R.  Co.  v.  Illinois,  200  U.  S.  561, 

605,   26  Sup.   Ct.   341,   50  L.   ed.   596;    Atlantic   Coast  Line  R.   Co.   v. 

Florida,  203  U.  S.  256,  27  Sup.  Ct.  108;  Seaboard  Air  Line  R.  Co.  v. 

Florida,  203  U.  S.  261,  27  Sup.   Ct.  109. 

Railroads  are  the  subject  of  state  regulation  within  the  state  by 
the  legislature  direct,  or  by  the  legislature  through  a  Railroad  Com- 
mission. See  Rio  Grande  So.  R.  Co.  v.  Campbell,  44  Colo.  1,  69  Pac. 
986;  Felt  v.  Denver  &  R.  G.  R.  Co.,  48  Colo.  249,  110  Pac.  215,  1136. 
23  State  has  power  to  limit  railroad  charges  for  transportation, 
etc.,  within  its  jurisdiction,  except  in  those  cases  where  it  is  re- 
strained by  contract  or  by  the  power  of  Congress  to  regulate  foreign 
or  interstate  commerce.  Stone  v.  Farmers'  L.  &  T.  Co.,  116  U.  S. 
307,  6  Sup.  Ct.  334,  374,  1191,   29   L.   ed.   636. 

Power  of  state  to  regulate  charges  of  railroads,  etc.,  can  be 
bargained  away,  if  at  all,  by  words  of  positive  grant  only,  or  their 
equivalent.  Stone  v.  Farmers'  L.  &  T.  Co.,  116  U.  S.  307,  6  Sup. 
Ct.  334,  374,  1191,  29  L.  ed.  636. 

As  to  extent  of  state  control  over  railroads,  see  B.  &  O.  R.  Co. 
v.  Maryland,  88  U.  S.  (20  Wall.)  456,  22  L.  ed.  678,  note. 

Unjust  discriminations  on  the  part  of  railroads  and  other  carriers 
may  be  regulated  by  the  state  legislature.  Such  corporations  should 
not  use  their  power  to  benefit  particular  individuals  or  build  up 
particular  localities  by  arbitrary  discriminations  in  their  favor,  which 
must  cause  injury  to  other  persons  or  places  in  rival  business  or 
occupying  rival  positions.  Chicago  &  Alton  R.  Co.  v.  People  ex  rel. 
Koerner,  67  111.  11. 

The  state  legislature  has  power  to  fix  a  maximum  rate  of  charges 
by  individuals   or  common  carriers,  warehousemen  or   other  persons 


§  45  CONSTITUTIONALITY   OP   ACT.  67 

done."2*  In  order  to  authorize  the  exercise  of  this 
power,  the  nature  of  the  contingency  is  immaterial, 
provided  it  be  an  equal  and  a  fair  one,  a  moral  and  a 
legal  one,  not  opposed  to  sound  policy,  and  so  far 
connected  with  the  object  and  purpose  of  the  statute 
as  not  to  be  a  mere  idle  and  arbitrary  one.25 

The  United  States  supreme  court  say:  "It  cannot 
be  doubted  that  the  making  of  rates  for  transportation 
by  railroad  companies,  along  public  highways  between 
points  wholly  within  the  limits  of  the  state,  is  a  sub- 
ject primarily  within  the  control  of  the  state."  26  All 
means  which  are  appropriate  and  which  are  plainly 
adaptable  to  the  end  authorized  to  be  attained,  and 

or  corporations  exercising  a  calling  or  business  public  in  its  character 
or  in  which  the  public  have  an  interest  to  be  protected  against  ex- 
tortion or  oppression;  and  such  regulation  does  not  impair  the  obliga- 
tion of  the  contract  in  the  charters  of  the  corporations  regulated.  Rug- 
gles  v.  People,  91  111.  256. 

All  corporations  are  subject  to  legislative  control  under  the  ex- 
ercise of  the  police  power  of  the  state.  Ruggles  v  People,  91  HI. 
256. 

z*  Stone  v.  Farmers'  L.  &  T.  Co.,  116  U.  S.  307,  6  Sup.  Ct.  334,  29 
L.  ed.  636;  State  v.  Johnson,  61  Kan.  803,  60  Pac.  1068,  49  L.  R.  A. 
662;  State  ex  rel.  Taylor  v.  Missouri  Pac.  R.  Co.,  76  Kan.  467,  476, 
92  Pac.  606. 

25  State  v.  Parker,  26  Vt,  357. 

An  act  of  the  legislature  establishing  a  reasonable  maximum  rate 
of  charge  for  transportation  of  passengers  or  property  on  railroads 
within  the  state  is  a  valid  and  constitutional  law.  Chicago,  B.  & 
Q.  R.   Co.  v.  Jones,  149  111.  361,  37  N.  E.  247. 

By  the  Illinois  constitutional  provision  (article  II,  sections  12  and 
15)  the  legislature  has  the  right  to  pass  a  law  establishing  or  fixing 
reasonable  maximum  rates  of  charge,  and  when  it  passes  such  an  act 
it  does  not  exceed  the  powers  granted  to  it.  Chicago,  B.  &  Q.  R. 
Co.  v.  Jones,  149  111.  361,  37  N.   E.  247. 

Georgia  Act  of  October  14,  1879,  providing  that  fair  or  reasonable 
rates  only  shall  be  charged  by  railroads  of  the  state  does  not  violate 
the  invested  right  of  the  railroad  companies  heretofore  organized 
and  operating  in  the  state.  Georgia  R.  Co.  v.  Railroad  Commission, 
70  Ga.  694. 

26  Smyth  v.  Ames,  169  U.  S.  466,  18  Sup.  Ct.  418,  42  L.  ed.  819. 


68  CALIFORNIA  PUBLIC   UTILITIES  ACT.  §  46 

which  are  not  prohibited,  if  they  be  consistent  with 
the  letter  and  spirit  of  the  constitution,  are  constitu- 
tional. Where  the  law  is  not  prohibited,  and  is  really 
calculated  to  effect  any  of  the  objects  intrusted  to 
the  government,  for  the  courts  to  undertake  to  in- 
quire into  the  degree  of  its  necessity  would  be  to  pass 
the  line  which  circumscribes  the  judicial  department 
and  to  tread  on  legislative  grounds.27 

§  46.    Charter  Rights  of  Corporations.— The 

provisions  of  the  charter  of  a  railroad  or  other  corpora- 
tion does  not  constitute  a  contract.28  Such  charter  is 
taken  and  held  subject  to  the  power  of  the  state  to 
regulate  and  control  the  grant  in  the  interest  of  the 
public,29  and  the  state  may  repeal,  alter,  or  amend  the 
law  under  which  the  charter  granted  was  governed 
and  the  franchise  exercised;  the  charter  right  is  not 
a  contract-interest  protected  by  the  federal  con- 
stitution prohibiting  the  impairment  of  contracts.30 
Therefore,  the  power  granted  to  the  board  of  directors 
of  a  railroad  or  other  public  corporation  to  make 
by-laws,  rules  and  regulations  for  the  management  of 
its  affairs,  subject  to,  and  in  conformity  with,  the  laws 
of  the  state,  does  not  have  the  effect  to  exempt  the 
company  from  the  operation  of  laws  subsequently 
enacted,  when  such  laws  are  within  the  scope  of  legis- 

2T  See  McCullock  v.  Maryland,  17  U.  S.  (4  Wheat.)  316,  415,  421, 
423,  4  L.  ed.  579;  Logan  v.  United  States,  144  U.  S.  263,  283,  293, 
12  Sup.  Ct.  622,  626,  36  L.  ed.  429;  Boske  v.  Comingore,  177  U.  S. 
459,  468,  20  Sup.  Ct.  705,  44  L.  cd.  847. 

28  Georgia  R.  Co.  v.  Railroad  Commission,  70  Ga.  694;  Missouri  Pac. 
R.  Co.  v.  Kansas,  216  U.  S.  262,  30  Sup.  Ct.  330,  54  L.  ed.  472. 

29  State  ex  rel.  Taylor  v.  Missouri  Pac.  R.  Co.,  76  Kan.  467,  494, 
92  Pac.  606;  Louisville  &  N.  R.  Co.  v.  Kentucky,  183  U.  S.  503,  22 
Sup.  Ct.  95,  46  L.  ed.  292. 

so  Missouri  Pac.  R.  Co.  v.  Kansas,  216  U.  S.  262,  30  Sup.  Ct.  330, 
54  L.  ed.  472. 

See,  also,  notes,  26  L.  ed.  U.  S.  Rep.  961,  77  C.  C.  A.  281. 


§  47  CONSTITUTIONALITY    OF   ACT.  69 

lative  power,  for  the  purpose  of  regulating  the  busi- 
ness in  which  such  company  is  authorized  to  engage.31 
Acts  of  incorporation  granting  exclusive  privileges 
are  to  be  strictly  construed,  and  what  is  not  expressly 
given  therein,  or  necessarily  implied  therefrom,  is 
withheld.32  The  act  establishing  a  Railroad  Commis- 
sion, and  empowering  it  to  regulate  and  fix  rates  for 
the  carriage  of  passengers  and  property,  does  not  in 
any  way  impair  the  obligation  of  the  contract  in  the 
charter  of  a  railroad  company.33 

§  47.  Delegation  of  Power  by  Legislation — Gen- 
erally.— While  it  is  true  that,  except  as  to  where 
authorized  by  the  constitution,  the  legislature  cannot 
delegate  the  legislative  power, — cannot  confer  upon 
any  body  or  person  the  power  to  determine  what  shall 
be  the  law, — because  the  legislature  alone  is  empow- 
ered to  determine  what  the  law  shall  be ; 34  yet  an  act 

si  Stone  v.  Farmers'  L.  &  T.  Co.,  116  U.  S.  307,  6  Sup.  Ct.  334,  374, 
1191,  29  L.  ed.  636. 

As  to  extent  of  state  control  over  railroads,  etc.,  see  note,  29  L. 
ed.  17.  S.  Rep.  636. 

The  granting  to  a  railroad  company  the  right,  "from  time  to  time, 
to  fix,  regulate  and  receive  the  toll  and  charges"  to  be  received  by  it, 
merely  confers  the  power  to  fix  reasonable  charges,  leaving  the  state 
free,  within  the  limits  of  its  general  authority,  to  declare  what  shall 
be  deemed  reasonable  charges  for  the  services  rendered.  State  v.  Farm- 
ers' L.  &  T.  Co.,  116  U.  S.  307,  6  Sup.  Ct.  334,  374,  1191,  29  L.  ed.  636; 
Corporation  Commission  v.  Atlantic  Coast  Line  R.  Co.,  137  N.  C.  1, 
49  S.  E.  191,  115  Am.  St.  Rep.  636,  affirmed  in  Atlantic  Coast  Line  R. 
Co.  v.  North  Carolina  Corporation  Commission,  206  U.  S.  1,  27  Sup. 
Ct.  585,  51  L.  ed.  933. 

32  Georgia  R.  Co.  v.  Railroad  Commission,  70   Ga.   694. 

S3  Chicago,  B.  &  Q.  R.  Co.  v.  Jones,  149  111.  361,  37  N.  E.  247. 

s*  State  v.  Young,  29  Minn.  474,  9  N.  W.  373,  affirmed  and  applied 
in  State  v.  Chicago,  M.  &  St.  P.  R.  Co.,  38  Minn.  2S1,  27  NT.  W.  7S2, 
and  reversed  on  another  point  in  Chicago,  M.  &  St.  P.  R.  Co.  v.  Munn, 
134  TJ.  S.  418,  10  Sup.  Ct.  702,  33  L.  ed.  970;  but  that  portion  of  the 
decision  relating  to  the  question  of  what  is  and  what  is  not  a  delega- 
tion of  legislative  power  has  never  been  questioned,  and  is  still  the  law 
of  the  state  of  Minnesota.  State  v.  Great  Northern  R.  Co.,  100  Minn. 
445,  111  N.  W.  2S9;  Anderson  v.  Manchester  Fire  Assur.  Co.,  59  Minn. 


70  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  48 

creating  a  Board  of  Railroad  Commissioners  and  em- 
powering them  to  fix  rates  may  properly  be  passed, 
because  it  does  not  constitute  a  delegation  to  such  a 
board  of  legislative  power.35  The  legislature,  in  the 
exercise  of  its  power  to  regulate  and  control  public 
corporations,  such  as  railroads  and  other  common  car- 
riers, may  delegate  to  a  Board  of  Railroad  Commis- 
sioners certain  functions  which  are  administrative  in 
their  character,  and  which  cannot  well  be  performed 
by  the  legislature  itself.36 

§  48.    Want    of    Constitutional    Provision. — 

The  fact  that  the  constitution  of  a  state  does  not 
specifically  provide  for  the  creation  of  a  Board  of 
Railroad  Commissioners  does  not  make  an  act  creat- 
ing such  a  board  invalid,  the  subjects  upon  which  the 
legislature  may  enact  laws  not  being  enumerated  in 
the  constitution.37     The    constitution    of    the    United 

182,  60  N.  W.  1095,  63  N.  W.  241,  50  Am.  St.  Rep.  400,  28  L.  E.  A. 
689;  State  v.  Copeland,  66  Minn.  322,  69  N.  W.  27,  61  Am.  St.  Rep. 
410,  34  L.  R  A.  777;  State  v.  Wagoner,  77  Minn.  501,  80  N.  W.  633, 
1134,  77  Am.  St.  Rep.  680,  46  L.  R.  A.  442 ;  Mague  v.  Board  of  County 
Commissioners,  84  Minn.  472,  88  N.  W.  6. 

35  State  ex  rel.  Taylor  v.  Missouri  Pac.  R.  Co.,  76  Kan.  467,  92  Pac. 
606. 

See,  also,  supra,  footnote  8,  this  chapter. 

36  State  ex  rel.  Taylor  v.  Missouri  Pac.  R.  Co.,  76  Kan.  467,  92 
Pac.  606. 

The  liberty  of  contract  guaranteed  by  the  fifth  amendment  to  the 
federal  constitution  is  not  impaired  by  the  Interstate  Commerce  Act; 
and  by  parity  of  reasoning  the  right  of  contract  of  a  railroad  or  other 
corporation,  person  or  association  will  not  be  impaired  by  a  state  stat- 
ute appointing  a  Railroad  Commission  or  other  body  and  empowering 
it  to  fix  rates,  etc.  See  Atlantic  Coast  Line  R.  Co.  v.  Riverside  Mills, 
219  U.  S.  186,  31  Sup.  Ct.  164,  55  L.  ed.  167. 

37  State  ex  rel.  Taylor  v.  Missouri  Pac.  R.  Co.,  76  Kan.  467,  92 
Pac.  606. 

Specific  provisions  in  the  constitution  are  not  essential  to  enable  the 
legislature  of  the  state  to  make  all  laws  necessary  and  proper  for  carry- 
ino-  into  execution  the  powers  which  the  constitution  fixes  in  the  state 
government,  or  in  any  department  or  officer  thereof.     See  Minneapolis, 


§  49  CONSTITUTIONALITY   OF   ACT.  71 

States  does  not  mention  a  federal  Commission,  but 
Congress,  under  the  commerce  clause  in  the  federal 
constitution,  has  created  one,  the  validity  of  which  act 
has  been  repeatedly  upheld  by  the  federal  courts.38 

§  49.     Authority  to  Delegate  as  to  Acts  not 

Legislative. — While  it  is  true  that  the  legislature  may 
not  delegate  those  powers  which  are  strictly  legisla- 
tive, it  may  delegate  authority  to  perform  certain 
functions  which  are  administrative  in  character,  and 
which  cannot  well  be  performed  by  the  legislature.39 

St.  P.  &  Ste.  Marie  R.  Co.  v.  Kailroad  Commission,  136  Wis.  146,  116 
N.  W.  915. 

The  creation  of  a  Board  of  Railroad  Commissioners  is  not  void,  even 
in  those  cases  in  which  the  constitution  does  not  specifically  provide 
for  the  creation  of  such  a  body.  State  ex  rel.  Taylor  v.  Missouri  Pac. 
R.  Co.,  76  Kan.  467,  92  Pac.  606. 

38  State  ex  rel.  Taylor  v.  Missouri  Pac.  R.  Co.,  76  Kan.  467,  92 
Pac.  606. 

38  The  following  authorities,  and  many  others  that  might  be  cited, 
sustain  this  doctrine:  See  Georgia  R.  Oo.  v.  Smith  et  al.,  Railroad  Com- 
mission, 70  Ga.  694;  State  ex  rel.  Taylor  v.  Missouri  Pac.  R.  Co.,  76 
Kan.  467,  480,  92  Pac.  606;  State  v.  Chicago,  M.  &  St.  P.  R.  Co.,  38 
Minn.  281,  37  N.  W.  782;  State  v.  Freemont,  E.  &  M.  O.  R.  Co.,  22 
Neb.  313,  35  N.  W.  118;  Express  Co.  v.  Wilmington  &  W.  R.  Co.,  Ill 
N.  C.  463,  16  S.  E.  393;  Cincinnati,  W.  &  Z.  R.  Co.  v.  Commissioners, 
1  Ohio  St.  77 ;  Railroad  Commission  v.  Atlantic  Coast  Line  R.  Co.,  71 
S.  C.  130,  50  S.  E.  641;  Chicago,  B.  &  Q.  R.  Co.  v.  Iowa,  94  U.  S.  155, 
24  L.  ed.  94 ;  Peik  v.  Chicago  &  N.  W.  R.  Co.,  94  U.  S.  164,  24  L.  ed. 
97;  Winona  &  St.  P.  R.  Co.  v.  Blake,  94  U.  S.  180,  24  L.  ed.  99;  Stone 
v.  Wisconsin,  94  U.  S.  181,  24  L.  ed.  102;  Chicago,  M.  &  St.  P.  R.  Co. 
v.  Ackley,  94  U.  S.  197,  24  L.  ed.  99;  Ruggles  v.  Illinois,  108  U.  S. 
526,  2  Sup.  Ct.  382.  27  L.  ed.  812;  Illinois  Cent.  R.  Co.  v.  Illinois,  is 
U.  S.  541,  2  Sup.  Ct.  839,  27  L.  ed.  818;  Stone  v.  Farmers'  L.  &  T. 
Co.,  116  U.  S.  307,  6  Sup.  Ct.  334,  1191,  29  L.  ed.  636;  Stone  v.  Illi- 
nois Cent.  R.  Co.,  116  U.  S.  347,  6  Sup.  Ct.  348,  1191,  29  L.  ed.  650; 
Stone  v.  New  Orleans  &  N.  E.  R.  Co.,  116  U.  S.  352,  6  Sup.  Ct.  349, 
29  L.  ed.  C51;  Dow  v.  Beidelman,  125  U.  a  680,  8  Sup.  Ct.  1028,  31 
L.  ed.  841;  Charlotte  etc.  R.  Co.  v.  GiBbes,  142  U.  S.  386,  12  Sup.  Ct. 
255,  35  L.  ed.  1051;  Chicago  &  G.  T.  R.  Co.  v.  Wellmau,  143  U.  S. 
339,  12  Sup.  Ct.  400,  36  L.  ed.  176;  Pearsall  v.  Great  Northern  R.  Co., 
161  U.  S.  646,  16  Sup.  Ct.  705,  40  L.  ed.  838;  Minneapolis  &  St.  L.  R. 
Co.  v.  Minnesota,  186  U.  S.  257,  22  Sup.  Ct.  900,  46  L.  ed.  1151;  Min- 
neapolis &  St.  L.  R.  Co.  v.  Minnesota,  193  U.  S.  53,  24  Sup.  Ct.  396, 


72  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  50 

It  has  been  well  said  that  "half  the  statutes  on  onr 
books  are  in  the  alternative,  depending  upon  the  dis- 
cretion of  some  person  or  board  to  whom  is  confided 
the  duty  o'f  determining  whether  the  proper  occasion 
exists  for  executing  them.  But  it  cannot  be  said  that 
the  exercise  of  such  discretion  is  the  making  of  the 
law. ' '  *°  The  true  distinction  is  between  the  delega- 
tion of  power  to  make  the  law,  which  necessarily  in- 
volves a  discretion  as  to  what  the  law  shall  be,  and 
conferring  authority  or  discretion  as  to  the  execution 
of  the  law,  to  be  exercised  under  and  in  pursuance  of 
the  law.  The  first  cannot  be  done;  to  the  latter  no 
valid  objection  can  be  raised." 

§  50.  Delegation  as  to  Details  and  Enforce- 
ment.— The  reasonableness  of  rates  charged  by  com- 
mon carriers  depends  upon  circumstances,  and  as 
legislatures  cannot  be  continually  in  session  to  con- 
sider and  pass  upon  these  circumstances,  the  require- 
ments that  the  statute  itself  shall  fix  the  charges 
might  preclude  the  legislature  from  the  use  of  the 
agencies  necessary  to  perform  the  duties  imposed  upon 
it  by  the  constitution.  In  other  words,  the  legislature 
may  authorize  others  to  do  things  which  it  might 
properly  be  inconvenient  or  disadvantageous  for  it  to 
do  itself.42     The  extent  of  the  authority  of  the  legis- 

48  L.  ed.  612;  Chicago,  B.  &  Q.  R.  Co.  v.  Drainage  Commission,  200 
U.  S.  561,  26  Sup.  Ct.  341,  50  L.  ed.  506;  Atlantic  Coast  Line  v.  Flor- 
ida, 203  U.  S.  256,  27  Sup.  Ct.  108,  51  L.  ed.  174;  Seaboard  Air  Line 
Co.  v.  Florida,  203  U.  S.  261,  27  Sup.  Ct.  109,  51  L.  ed.  261;  Atlantic 
Coast  Line  Co.  v.  North  Carolina  Corporate  Commission,  204  U.  S.  1, 
27  Sup.  Ct.  585,  51  L.  ed.  933;  Tilly  v.  Railroad  Commissioners,  4 
Woods,  427,  5  Fed.  641. 

40  Moers  v.  City  of  Reading,  21  Pa.  188,  202.  See  Locke's  Appeals, 
72  Pa.  491,  498,  13  Am.  Rep.  716. 

4i  Cincinnati,  W.  &  Z.  R.  Co.  v.  Clinton,  1  Ohio  St.  77,  approved  in 
Field  v.  Clark,  143  U.  S.  649,  12  Sup.  Ct.  495,  36  L.  ed.  294. 

42  See  Union  Bridge  Co.  v.  United  States,  204  U.  S.  364,  27  Sup. 
Ct.  367,  51  L.  ed.  523. 


§  50  CONSTITUTIONALITY   OF   ACT.  73 

lature  to  delegate  its  power  to  a  Railroad  Commission 
is  limited  only  by  the  constitutional  guaranties  pro- 
hibiting the  destruction  of  property  rights  vested  in 
the  owners  of  railroads  and  other  common  carriers.43 

While  the  legislature  possesses  all  the  legislative 
powers  of  the  state,  and  while  it  is  true  that  they  can- 
not delegate  any  portion  of  that  legislative  power  to 
any  other  body,  tribunal  or  person,  yet  it  is  gener- 
ally found  impracticable  for  the  legislature  to  exer- 
cise this  power  in  detail.  The  legislature  may  do  so 
if  they  choose,  or  they  may  enact  a  general  provision 
and  leave  those  who  are  to  act  under  such  general 
provision  to  use  their  discretion  in  filling  up  the 
details.  They  mark  out  the  great  outlines,  and  leave 
those  who  are  to  act  within  those  outlines  to  use  their 
own  discretion  in  carrying  out  the  minor  regulations.44 

43  Chicago,  M.  &  St.  P.  R.  Co.  v.  Minnesota,  134  U.  S.  418,  10  Sup. 
Ct.  462,  33  L.  ed.  970;  State  v.  Johnson,  61  Kan.  803,  60  Pac.  1068, 
49  L.  R.  A.  662;  State  ex  rel.  Taylor  v.  Missouri  Pac.  R.  Co.,  76  Kan. 
467,  476,  92  Pac.  606. 

4*  Coleman  v.  Newby,  7  Kan.  82,  88.  See  Chicago  &  N.  W.  R.  Co.  v. 
Dey,  35  Fed.  866,  1  L.  R.  A.  744. 

Because  of  the  multitude  of  details,  the  intricacy  of  the  subject,  the 
expert  knowledge  required,  the  numerous  separate  investigations  of  in- 
terrelated questions  of  fact  which  are  necessary,  and  the  necessity  for 
frequent  change  and  adjustment  in  rates  or  services,  a  legislative  body, 
the  members  of  which  are  chosen  for  each  term  from  the  body  of  the 
people,  find  it  an  actual,  rather  than  a  legal,  impossibility  to  fix  just 
and  reasonable  rates.  It  is  manifest  that  to  hold  that  by  the  adop- 
tion of  its  constitution,  fixing  the  whole  legislative  power  in  the  Senate 
and  Assembly  and  forbidding  its  delegation,  the  state  would  be  shorn 
of  some  of  its  usual  and  necessary  power  of  sovereignty  and  become 
impotent  to  exercise  the  power  of  regulation.  Minneapolis,  St.  P.  & 
Ste.  M.  R.  Co.  v.  Railroad  Commission,  136  Wis.  146,  116  N.  W.  915. 

Railroad  rates  regulated  by  direct  action  of  the  legislature  are  im- 
practicable. The  business  of  the  carrier  has  so  grown  and  expanded  and 
become  such  a  large  factor  in  the  conflicting  social  and  economic  life 
of  the  country,  that  the  old  method  of  regulation  by  direct  act  of  the 
legislative  body  is  no  longer  adequate  and,  indeed,  no  longer  possible. 
But  the  old  authority  and  the  old  principles  of  the  right  of  regulation 
by   the   state   remain,    and    are    not    to    be    abrogated    by    implication. 


74  CALIFORNIA   PUBLIC    UTILITIES  ACT.  §  50 

That  is  to  say,  general  rules  of  law  may  be  made  by 
the  legislature  to  take  effect  and  be  put  in  force  upon 
the  subsequent  establishment  of  certain  facts  or  con- 
ditions; and  the  nature  of  the  contingency  on  which 
the  law  is  to  go  into  effect  is  immaterial,  where  such 
contingency  is  fairly  connected  with  the  object  and 
purpose  of  the  act,  and  is  reasonably  certain.45 

An  efficient  system  of  just  and  reasonable  regula- 
tion of  railroad  rates  and  services,  etc.,  by  direct 
action  of  the  legislature  specifying  rates  of  delivery 
and  service,  is  impossible,  under  our  system  of  gov- 
ernment.46    Reasonableness  and  certainty  of  railroad 

Minneapolis,  St.  P.  &  Ste.  M.  R.  Co.  v.  Railroad  Commission,  136  Wis. 
146,  116  N.  W.  915. 

The  limitation  and  implied  prohibition  in  the  constitution  must  not 
be  extended  so  far  as  to  destroy  the  necessary  power  of  the  state  or 
prevent  its  efficient  exercise.  See  Union  Pac.  R.  Co.  v.  Peniston,  85  U. 
S.   (18  Wall.)  5,  31,  21  L.  ed.  787. 

The  constitution  of  the  United  States  gives  Congress  power  to  make 
all  laws  necessary  and  proper  for  carrying  into  execution  the  power 
by  that  instrument  invested  in  the  government  of  the  United  States  or  in 
any  department  or  officer  thereof.  But  the  legislatures  of  the  various 
states  need  no  such  enabling  provision;  they  possess  that  power.  Min- 
neapolis, St.  P.  &  Ste.  M.  R.  Co.  v.  Railroad  Commission,  136  Wis. 
146,  116  N.  W.  915. 

45  See  Minneapolis,  St.  P.  &  Ste.  Marie  R.  Co.  v.  Railroad  Commission, 
136  Wis.  146,  116  N.  W.  915. 

Process  of  enacting  laws  frequently  involves  preliminary  determina- 
tion of  a  fact  or  group  of  facts  by  the  legislature,  and  it  is  well  set- 
tled that  the  legislature  may  declare  the  general  rule  and  law  to  be  in 
force  and  take  effect  upon  the  subsequent  establishing  of  the  fact  ne- 
cessary to  make  it  operative  or  to  call  for  its  application.  Minneapolis, 
St.  P.  &  Ste.  M.  R.  Co.  v.  Railroad  Commission,  136  Wis.  146,  162, 
116  N.  W.  915;  see  Hanover  Nat.  Bank  v.  Moyses,  186  U.  S.  181,  22 
Sup.  Ct.  857,  46  L.  ed.  1113;  Phoenix  Ins.  Co.  v.  Welch,  29  Kan.  672; 
Adams  v.  Beloit,  105  Wis.  363,  81  N.  W.  896,  47  L.  R.  A.  441;  In  re 
Griner,  16  Wis.  423;  Field  v.  Clark,  143  U.  S.  649,  12  Sup.  Ct.  495, 
36  L.  'ed.  294;  In  re  North  Milwaukee,  93  Wis.  616,  67  N.  W.  1033, 
33  L.  R.  A.  638;  Nash  v.  Fries,  129  Wis.  120,  10»  N.  W.  210;  State 
ex  rel.  Adams  v.  Burdge,  95  Wis.  390,  70  N.  W.  347,  60  Am.  St.  Rep. 
123,  37  L.  R.  A.  157;  State  ex  rel.  Faber  v.  Hinkel,  131  Wis.  103,  111 
N.  W.  217;  State  v.  Parker,  26  Vt.  357. 

46  See  Minneapolis,  St.  P.  &  Ste.  Marie  R.  Co.  v.  Railroad  Commis- 
sion, 133  Wis.  146,  116  N.  W.  915. 


§  50  CONSTITUTIONALITY    OF   ACT.  75 

rates  being  required  by  a  statute  creating  a  Commis- 
sion with  power  to  investigate  existing  rates  and  ser- 
vices and  to  fix  and  determine  what  rates  and  what 
services  are  reasonable,  and  providing  that  the  rates 
of  service  so  fixed  by  such  Commission  shall  be  in 
force,  is  a  valid  exercise  of  legislative  power.47  This 
power  of  the  legislature  to  regulate  the  operation  of 
railroads  and  other  public  utilities  by  a  Commission 

*T  See  Minneapolis,  St.  P.  &  Ste.  Marie  B.  Co.  v.  Railroad  Commission, 
136  Wis.   146,  116  N.  W.  915. 

Delegation  of  any  power  not  legislative  in  its  character  which  it  may 
rightfully  exercise  may  be  made  by  the  legislature.  Wayman  v.  South- 
ard, 23  U.  S.  (10  Wheat.)   1,  6  L.  ed.  253. 

The  legislature,  in  the  exercise  of  its  power  to  regulate  and  control 
public  corporations,  may  delegate  to  a  Board  of  Bailroad  Commissioners 
or  other  body  or  officers  certain  functions  administrative  iu  their  char- 
acter and  which  cannot  well  be  performed  by  the  legislature  itself. 
State  ex  rel.  Taylor  v.  Missouri  Pac.  B.  Co.,  76  Kan.  467,  92  Pac.  606. 
Legislature  may,  instead  of  making  the  law  wholly  conditional  and 
contingent  upon  the  ascertainment  and  declaration  of  reasonable  rates 
by  the  Commission,  add  the  further  contingency  that  the  investigation 
and  order  of  the  Commission  be  subject  to  the  review  of  the  courts, 
and  the  rate  so  fixed  by  the  Commission  upheld  as  not  unreasonable  by 
judicial  determination.  Minneapolis,  St.  P.  &  Ste.  M.  B.  Co.  v.  Bail- 
road  Commission,  136  Wis.  146,  163,  116  N.  W.  905. 

Legislature  may  delegate  the  power  to  determine  preliminarily  a  fact 
or  group  of  facts  essential  to  enable  the  legislature  to  enact  laws  and 
prescribe  rules  for  the  regulation  and  control  of  specific  matters.  See 
Minneapolis,  St.  P.  &  Ste.  Marie  B.  Co.  v.  Bailroad  Commission,  136 
Wis.  146,  116  N.  W.  915. 

Statutes  declaring  that  railroad  rates  and  services  shall  be  reason- 
able, and  creating  a  Commission  with  power  to  investigate  existing 
rates  of  service,  and  to  fix  and  determine  what  rates  and  what  ser- 
vices are  reasonable,  and  providing  that  the  rates  and  services  so  fixed 
by  such  Commission  shall  be  in  force,  have  been  generally  upheld  as  a 
valid  exercise  of  the  legislative  power.  See  Bailroad  Commission  Cases, 
116  U.  S.  307,  6  Sup.  Ct.  334,  1191,  29  L.  ed.  636;  Beagan  v.  Farmers' 
L.  &  T.  Co.,  154  U.  S.  362,  14  Sup.  Ct.  1047,  38  L.  ed.  1014;  Georgia 
R.  Co.  v.  Smith,  70  Ga.  694;  Chicago,  B.  &  Q.  B.  Co.  v.  Jones,  149  111. 
361,  37  N.  E.  247,  41  Am.  St.  Bep.  278,  24  L.  B.  A.  141;  Hooper  v. 
Chicago,  M.  &  St.  P.  E.  Co.,  91  Iowa,  639,  60  N.  W.  487;  State  ex  rel. 
Bailroad  &  Warehouse  Commission  v.  M.  &  St.  L.  B.  Co.,  80  Minn.  190, 
83  N.  W.  60;  Railroad  Commission  v.  Houston  &  B.  C.  B.  Co.,  90  Tex. 
340,  38  S.  W.  750. 


76  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §§51,52 

rests  upon  the  principle  that  the  state  has  control  of 
property  of  a  public  nature,48  and  is  not  in  violation  of 
the  constitutional  requirement  that  the  legislative, 
executive  and  judicial  departments  of  government 
shall  be  kept  separate.49 

§  51.  Discretionary  Powers  cannot  be  Dele- 
gated.— Discretion  to  determine  whether  precedent 
laws  shall  or  shall  not  go  into  effect  in  particular  cases 
cannot  be  delegated  by  the  legislature  to  a  Railroad 
Commission,  other  body,  or  to  the  courts.50  In  other 
words,  the  Commission  cannot  be  invested  with  dis- 
cretion to  determine  whether  precedent  law  declared 
by  the  legislature  shall  or  shall  not  go  into  effect  in  , 
particular  cases.51  The  only  power  that  can  be  dele- 
gated is  that  of  determining  whether  the  law  is  ap- 
plicable in  particular  cases. 

§  52.    Quasi- judicial     Tribunal. — That    is    to 

say,  a  quasi-judicial  tribunal  may  be  created  by  the 
legislature,  and  there  may  be  delegated  to  it  the 
power  which  the  legislature  possesses  to  ascertain, 
determine,  and  declare  facts,  where  such  determina- 
tion precedes  or  follows  the  enactment  of  a  general 
rule  of  law.52  Where  the  power  of  the  legislature  to 
regulate  cannot  otherwise  be  justly  and  efficiently  ex- 
ercised, the  legislature  may  declare  a  general  rule  of 
law  applicable  to  conditions  of  fact  described  by  such 

♦a  Caughman  v.  Columbus  N.  &  H.  E.  Co.,  82  S.  C.  418,  64  S.  E. 
240;  Gulf  etc.  R.  Co.  v.  State  (Tex.  App.),  120  S.  W.  1028. 

*»  See  discussion  in  authorities  in   §  64,   this  chapter. 

so  See  Minneapolis,  St.  P.  &  Ste.  Marie  R.  Co.  v.  Railroad  Commis- 
sion, 13-6  Wis.  146,  116  N.  W.  915. 

6i  Minneapolis,  St.  P.  &  Ste.  Marie  R.  Co.  v.  Railroad  Commission, 
136  Wis.  146,  163,  116  N.  W.  915.  See  In  re  North  Milwaukee,  93 
Wis.  616,  67  N.  W.  133,  33  L.  R.  A.  638;  Dowling  v.  Lancashire  Ins. 
Co.,  92  Wis.  63,  65  N.  W.  738,  31  L.  R.  A.  112. 

62  See  Minneapolis,  St.  P.  &  Ste.  Marie  R.  Co.  v.  Railroad  Commis- 
sion, 136  Wis.  146,  116  N.  W.  915. 


§§53,54  CONSTITUTIONALITY  OF  ACT.  77 

law  in  general  terms  but  not  precisely  ascertained, 
which  law  is  to  take  effect  upon  all  specific  cases 
within  the  general  rule  therein  written  down  when 
there  exists  such  a  condition  of  fact  as  brings  the 
case  within  the  rule  as  ascertained  and  established  by 
subsequent  determination  of  a  judicial  or  a  quasi- 
judicial  tribunal  established  by  the  legislature  for  that 
purpose.63 

§  53.  Commission  Acts — Alabama. — The  Alabama 
Act  empowering  the  state  Railroad  Commission  to  fix 
and  change  rates  came  before  the  circuit  court  of 
appeals  of  the  United  States  in  1909  on  the  question  of 
its  validity,  it  being  alleged  to  be  contrary  to  the 
provisions  of  the  Alabama  constitution  separating  the 
functions  of  government,  and  Mr.  Justice  Selby,  in 
sustaining  the  validity  of  the  act,  among  other  things, 
says:  "It  is  true  that  the  functions  of  fixing  rates  is 
legislative  in  its  nature,  yet  it  seems  well  settled  now 
that  the  creation  of  a  Commission,  with  power  to  fix 
rates,  is  not  an  unconstitutional  delegation  of  legis- 
lative power."  " 

§  54.     Illinois. — The    Illinois     Railroad    and 

Warehouse  Commission  Act  of  1871,  conferring  upon 
that  Commission  power  to  fix  freight  and  passenger 
rates,  was  the  first  Commission  of  the  kind  with  such 
powers,  and  furnishes  the  precedent  and  the  policy 
for  similar  acts  in  other  states.  The  litigation  follow- 
ing the  establishment  of  the  Illinois  Commission  fully 

63  See  Minneapolis,  St.  P.  &  Ste.  Marie  R.  Co.  v.  Railroad  Commis- 
sion, 136  Wis.  146,  116  N.  W.  915. 

54  Railroad  Commission  of  Alabama  v.  Central  Ga.  R.  Co.,  170  Fed. 
225,  238,  distinguishing  as  not  applicable;  Mitchell  v.  State  ex  rel. 
Florence  Dispensary,  134  Ala.  392,  32  So.  687,  and  approving;  Ward  v. 
State  ex  rel.  Parker,  154  Ala.  227,  45  So.  655;  Tallassee  Falls  Mfg. 
Co.  v.  Commissioner's  Court,  158  Ala.  363,  48  So.  354,  and  relying  on 
Saratoga  Springs  v.  Saratoga  Gas,  Elect.  Light  &  Power  Co.,  191  N. 
Y.  123,  83  N.  E.  693. 


78  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  55 

demonstrates  the  public  character  of  railway  busi- 
ness.55 The  Illinois  Act  of  1873,  relating  to  a  similar 
Commission,  has  been  held  not  to  be  invalid  because, 
instead  of  establishing  reasonable  and  maximum 
rates  of  charge,  it  delegated  the  power  to  establish 
such  rates  to  the  Commission.68 

§  55.     Iowa. — The  Iowa  Railroad  Commission 

Act,  which  empowers  the  Commission  to  make  sched- 

55  See  Chicago  &  A.  R.  Co.  v.  People  ex  rel.  Koener,  67  111.  11  (hold- 
ing railroad  corporations  subject  to  legislative  control) ;  Ruggels  v. 
People,  91  111.  256  (holding  charters  are  contracts  protected  by  the 
federal  constitution  but  subject  to  regulation  under  the  police  power 
of  the  state)  ;  Cent.  R.  Co.  v.  People,  95  111.  313  (holding  constitutional 
the  act  regulating  railroads  and  preventing  extortion  and  unjust  dis-  ^ 
criminations,  holding  the  charter  by  which  the  corporation  acquires  its 
power  and  functions  to  transact  its  business  in  the  mode  prescribed 
is  beyond  doubt  a  contract;  but  that,  by  necessary  implication,  it  is 
subject,  the  same  as  in  the  case  of  a  person,  to  the  legislative  power 
of  the  state  to  define,  prohibit  and  punish  extortion)  ;  Munn  v.  People,  94 
U.  S.  (4  Otto)  113,  24  L.  ed.  77  (holding  the  legislature  can  fix  by  law 
maximum  charges  for  storing  of  grain  in  warehouse;  that  the  regulation 
of  public  warehouses  is  not  unconstitutional;  that  private  property  de- 
voted to  a  public  use  is  subject  to  public  regulation;  and  that  a  mere 
common-law  regulation  of  trade  or  business  may  be  changed  by  statute). 

56  Chicago,  B.  &  Q.  R.  Co.  v.  Jones,  149  111.  361,  37  N.  E.  247,  41 
Am.  St.  Rep.  278,  24  L.  R.  A.  141. 

Illinois  statute  of  May  2,  1873,  provides  for  the  making  by  Railroads 
and  Warehouse  Commission  a  schedule  of  reasonable  maximum  rates 
for  each  of  the  railroad  corporations  of  the  state,  furnishing  a  uniform 
rule  for  the  guidance  of  railroad  companies.  Chicago,  B.  &  Q.  R.  Co. 
v.  People,  77  HI.  443;  Chicago,  B.  &  Q.  R.  Co.  v.  Jones,  149  HI.  361, 
375,  37  N.  E.  247. 

Section  8,  authorizing  Railroad  and  Warehouse  Commissions  to  fix  for 
each  of  the  railroads  in  the  state  a  schedule  of  reasonable  maximum 
rates,  is  not  unconstitutional,  as  being  an  attempted  delegation  of  legisla- 
tive powers.     Chicago,  B.  &  Q.  R.   Co.  v.  Jones,  149  111.  361,  37  N.  E. 

247. 

The  Illinois  Act  of  1873,  to  prevent  extortion  and  unjust  discrimina- 
tion in  rates  and  charges  for  the  transportation  of  passengers  and 
freight  on  railroads  within  the  state,  and  making  the  schedule  of  the 
Railroad  Commission  prima  facie  evidence  that  the  rates  therein  fixed 
are  reasonable  maximum  rates  of  charges,  is  not  unconstitutional  on  the 
ground  that  it  deprives  the  carriers  of  their  property  without  due  process 
of  law  or  as  infringing  upon  the  rights  of  trial  by  jury.  Chicago,  B. 
&  Q.  R.  Co.  v.  Jones,  149  111.  361,  37  N.  E.  247. 


§  55  CONSTITUTIONALITY    OF   ACT.  79 

ules  of  reasonable  and  maximum  rates,  and  annexes  a 
penalty  for  disobedience  on  the  part  of  railroad  com- 
panies in  the  charging  and  collection  of  tolls  and 
compensation  which  are  unreasonable  and  unjust, 
came  up  for  consideration  in  1888.  The  validity  of 
this  act  was  attacked  on  constitutional  grounds,  be- 
cause it  seemed  a  delegation  of  legislative  power.  Mr. 
Justice  Brewer  presiding,  speaking  of  the  power  to 
fix  rates  in  the  manner  pursued  by  the  Iowa  legisla- 
ture, said:  "There  is  no  inherent  vice  in  such  a  dele- 
gation of  power;  nothing  in  the  nature  of  things  which 
would  prevent  the  state,  by  constitutional  enactment 
at  least,  from  intrusting  these  powers  to  such  a  board ; 
and  nothing  in  such  constitutional  action  which  would 
invade  any  rights  guaranteed  by  the  federal  constitu- 
tion. So  that,  after  all,  the  question  is  one  more  of 
form  than  of  substance.  The  vital  question  with  both 
shipper  and  carrier  is  that  the  rates  shall  be  just  and 
reasonable,  and  not  by  what  body  they  shall  be  put 
in  force.  While  ....  it  must  be  conceded  that  the 
power  to  fix  rates  is  legislative,  yet  the  line  of  demar- 
cation between  legislative  and  administrative  func- 
tions is  not  always  easily  discerned.  The  one  runs 
into  the  other.  The  law  books  are  full  of  statutes, 
unquestionably  valid,  in  which  the  legislature  has 
been  content  to  simply  establish  rules  and  principles, 

leaving  execution  and  details  to  other  officers 

While,  of  course,  the  argument  from  inconvenience 
cannot  be  pushed  too  far,  yet  it  is  certainly  a  matter 
of  inquiry  whether  in  the  increasing  complexity  of 
our  civilization,  our  social  and  business  relations,  the 
power  of  the  legislature  to  give  increased  extent  to 
administrative  functions  must  not  be  recognized. 
....  Finally,  whatever  direct  authority  upon  the 
question  exists  sustains  this  delegation  of  power."" 

67  Chicago   &  N.   W.   R.   Co.  v.   Dey,   35   Fed.   866.    1   L.   R,   A.   744. 
Citing  Stone  v.  Farmers'  Loan  &  T.  Co.,  116  U.  S.  307,  6  Sup.  Ct.  334, 


80  CALIFORNIA   PUBLIC   UTILITIES  ACT.  §§56,57 

§  56.    Kansas. — The   constitution   of   Kansas 

vests  all  legislative  power  in  a  legislature  consisting 
of  a  Senate  and  House  of  Representatives,  and  the 
legislature  is  not  authorized  to  delegate  such  legis- 
lative power;  yet  it  may  confer  upon  any  person,  board 
or  Commission  the  power  of  determining  what  the  law 
shall  be.58  The  act  creating  the  Board  of  Railroad 
Commissioners  applies  solely  to  the  business  of  rail- 
roads within  the  state  of  Kansas,  and  is  not  designed 
to  affect,  and  does  not  apply  to  or  regulate  or  affect, 
interstate  commerce,59  and  is  not  unconstitutional 
upon  the  ground  that  it  provides  for  the  taking  of  the 
property  of  persons  or  corporations  without  due  pro- 
cess of  law.60 

§  57.    Minnesota. — The    Minnesota    Railroad 

and  Warehouse  Commission  Act  of  March  7,  1887,61 

1191,  29  L.  ed.  636;  Munn  v.  Illinois,  94  U.  S.  113,  24  L.  ed.  77; 
Chicago,  B.  &  Q.  R.  Co.  v.  Iowa,  94  U.  S.  155,  sub  nom.  Chicago,  B. 
&  Q.  R.  Co.  v.  Cutts,  24  L.  ed.  94;  Peik  v.  Chicago  &  N.  W.  R.  Co.,  94 
U.  S.  164,  24  L.  ed.  97. 

ss  State  ex  rel.  Taylor  v.  Missouri  Pac.  R.  Co.,  76  Kan.  467,  92  Pac. 
606. 

Kansas  constitution  contemplates  the  complete  separation  of  the 
three  governmental  powers  as  clearly  as  though  it  so  declared  in  ex- 
press terms.  In  re  Sims,  54  Kan.  1,  37  Pac.  135,  45  Am.  St.  Rep. 
261,  25  L.  R.  A.  110;  State  v.  Johnson,  61  Kan.  803,  60  Pac.  1068, 
49  L.  R.  A.  662;  In  re  Davis,  54  Kan.  368,  49  Pac.  160;  State  ex  rel. 
Taylor  v.  Missouri  Pac.  R.   Co.,   76  Kan.  467,  474,   92  Pac.  606. 

59  State  ex  rel.  Taylor  v.  Missouri  Pac.  R.  Co.,  76  Kan.  467,  92  Pac. 

606. 

eo  State  ex  rel.  Taylor  v.  Missouri  Pac.  R.  Co.,  76  Kan.  467,  92  Pac. 

606. 

Kansas  Act  creating  Board  of  Railroad  Commission  (Laws  1901, 
c.  286;  Gen.  Stats.  1901,  c.  84,  art.  3),  and  acts  supplementary  and 
amendatory  thereto  (Laws  1903,  c.  391;  Laws  1905,  c.  340),  do  not 
violate  the  constitutional  requirements  that  the  legislative,  executive  and 
judicial  departments  of  government  shall  be  kept  separate.  State  ex 
rel.  Taylor  v.  Missouri  Pac.  R.  Co.,  76  Kan.  467,  92  Pae.  606  (pend- 
ing in  supreme  court  of  United  States  on  writ  of  error  allowed  Novem- 
ber  18,   1907). 

6i  Minn.  Gen.  Laws  1880,  c.  10. 


§  58  CONSTITUTIONALITY   OF   ACT.  81 

was  held  to  be  in  derogation  of  the  right  to  a  judicial 
investigation  by  due  process  of  law,  and  for  that 
reason  unconstitutional.  In  discussing  the  act  the 
supreme  court  of  the  United  States  say:  "The  ex- 
pressed intention  of  the  legislature  is  that  the  rates 
recommended  and  published  by  the  Commission  (as- 
suming that  they  have  proceeded  in  the  manner 
pointed  out  by  the  act)  should  be  not  simply  advisory, 
nor  merely  prima  facie  equal  and  reasonable,  but  final 
and  conclusive  as  to  what  are  lawful  or  equal  and 
reasonable  charges ;  and  in  proceedings  to  compel  com- 
pliance with  the  rates  thus  published,  the  law  neither 
contemplates  nor  allows  any  issue  to  be  made,  or 
inquiry  had,  as  to  their  equality  and  reasonableness  in 
fact,  Under  the  provision  of  the  act,  the  rates  thus 
published  are  the  only  ones  that  are  lawful,  and 
therefore,  in  contemplation  of  the  law,  the  only  ones 
that  are  equal  and  reasonable;  and,  hence,  in  proceed- 
ings affecting  such  rates,  there  is  no  fact  to  traverse, 
except  the  violation  of  the  law  in  refusing  compliance 
with  the  recommendations  of  the  Commission,"  hold- 
ing this  statute  unconstitutional.62  The  present  Min- 
nesota Railroad  Commission  Act 63  authorizing  that 
Commission  by  order  to  fix  joint  through  rates  for 
the  transportation  of  freight  over  two  or  more  con- 
necting lines  of  railroad  within  the  state,  and  to  com- 
pel obedience  thereto,  has  been  held  not  to  be  in 
violation  of  any  constitutional  provision,  federal  or 
state.6* 

§  58.     Mississippi. — In  Mississippi    the    Rail- 
road Commission  Act  intrusts    the  Commission  with 

62  Chicago,  M.  &  St.  P.  R.  Co.  v.  Minnesota,  134  U.  S.  418,  10  Sup. 
Ct.  462,  32  L.  ed.  970. 

63  Minn.   Laws,   1895,  c.   91. 

64  State  ex  rel.  Railroad  &  Warehouse  Commission  v.  Minneapolis  & 
St.  L.  R.  Co.,  80  Minn.  191,  83  N.  W.  60. 

6 


82  CALIFOBNIA   PUBLIC   UTILITIES   ACT.  §  59 

supervision  over  traffic  charges,  with  authority  to 
continue  such  charge  from  time  to  time,  and  to  in- 
crease or  reduce  any  of  said  rates  according  as  ex- 
perience and  business  operation  may  justify,  and  to 
fix  tariffs  of  charges  for  those  railroads  failing  to 
furnish  schedules  as  required.  This  act  was  attacked 
in  the  supreme  court  of  the  state,  in  which  it  was 
contended  that  the  statute  is  repugnant  to  the  con- 
stitution of  the  state  because  it  creates  a  commission 
and  charges  that  commission  with  the  duty  of  super- 
vising railroads.  The  act  was  upheld  by  the  state 
court,  and  this  view  of  the  state  court  was  concurred 
in  by  the  supreme  court  of  the  United  States,  in  a  case 
involving  the  same  controversy,  and  being  one  of  those  v 
cases  known  as  the  "Railroad  Commission  Cases."05 

§  59,     North    Carolina. — In  North  Carolina  a 

Railroad  Commission  Act  was  passed  intrusting  a 
Commission  with  power  to  examine  and  fix  rates,  etc., 
and  enforce  the  same.  The  Commission  made  an  or- 
der, the  enforcement  of  which  was  directed  by  the 
state  court,  regulating  the  train  service  of  the  Atlantic 
Coast  Line  Railroad  with  connecting  carriers,  and  the 
case  was  carried  to  the  supreme  court  of  the  United 
States  in  1906,  on  the  ground  that  it  was  an  arbitrary 
and  unreasonable  order,  as  being  beyond  the  scope 
and  authority  delegated  to  the  Commission  by  the 
state  laws;  and  also  on  the  ground  that  it  invaded 

65  See  Stone  v.  Farmers'  Loan  &  Trust  Co.,  116  U.  S.  307,  6  Sup. 
Ct.  334,  1191,  29  L.  ed.  636;  Oregon  E.  &  Nav.  Co.  v.  Campbell,  173  Fed. 
957. 

The  Mississippi  constitution,  like  the  constitution  of  Oregon  and  other 
states  of  the  Union,  created  three  departments  of  government,  consist- 
ing of  the  legislative,  the  executive  and  the  judicial,  and  contains  no 
special  authorization  for  the  establishment  of  the  Railroad  Commission 
with  special  powers.  The  federal  case  above  cited  would  seem,  there- 
fore, to  be  strong  authority  for  the  validity  of  the  Oregon  Act,  al- 
though there  is  but  little  discussion  of  the  principle  involved.  Oregon 
R.  &  Nav.  Co.  v.  Campbell,  173  Fed.  957. 


§  GO  CONSTITUTIONALITY   OF   ACT.  83 

the  rights  of  property,  and  was  an  infringement  of 
the  Fourteenth  Amendment  to  the  federal  constitu- 
tion. In  discussing  questions  involved,  Mr.  Justice 
"White  said:  "The  elementary  proposition  that  rail- 
roads, from  the  public  nature  of  the  business  by  them 
carried  on  and  the  interest  which  the  public  have  id 
their  operation,  are  subject,  as  to  their  state  business, 
to  state  regulation,  which  may  be  exerted  either  di- 
rectly by  the  legislative  authority,  or  by  administra- 
tive bodies  endowed  with  power  to  that  end,  and  is 
not  and  could  not  be  successfully  questioned  in  view 
of  the  long  line  of  authorities  sustaining  that  doc- 
trine. ' ' 66 

§  60.    Oklahoma. — The    Oklahoma    Corpora- 
tion Commission  Act  does  not  extend  the  authority  of 

ee  Atlantic  Coast  Line  R.  Co.  v.  North  Carolina  Corporation  Commis- 
Bion,  206  U.  S.  1,  27  Sup.  Ct.  585,  51  L.  ed.  938,  citing  Chicago,  B.  & 
Q.  R.  Co.  v.  Iowa,  94  U.  S.  155,  sub  nom.  Chicago,  B.  &  Q.  E.  Co.  v. 
Cutts,  24  L.  ed.  94;  Peik  v.  Chicago  &  N.  W.  R.  Co.,  94  U.  S.  164, 
24  L.  ed.  97;  Chicago,  M.  &  St.  P.  R.  Co.  v.  Ackley,  94  U.  S.  179, 
24  L.  ed.  99;  Winona  &  St.  P.  R.  Co.  v.  Blake,  94  U.  S.  181,  24  L. 
ed.  102;  Ruggles  v.  Illinois,  108  U.  S.  536,  2  Sup.  Ct.  832,  27  L.  ed. 
816;  Illinois  C.  R.  Co.  v.  Illinois,  108  U.  S.  541,  2  Sup.  Ct.  839,  27  L. 
ed.  818;  Stone  v.  Farmers'  Loan  &  T.  Co.,  116  U.  S.  307,  6  Sup.  Ct. 
334,  3S8,  1191,  29  L.  ed.  636;  Stone  v.  Illinois  C.  R.  Co.,  116  U.  S. 
347,  6  Sup.  Ct.  348,  29  L.  ed.  650 ;  Stone  v.  New  Orleans  &  N.  E.  R,  Co., 
116  U.  S.  352,  6  Sup.  Ct.  349,  391,  29  L.  ed.  651;  Dow  v.  Beideln.au , 
125  U.  S.  680,  31  L.  ed.  841,  1  Inters.  Com.  Rep.  56,  8  Sup.  Ct.  1028; 
Charlotte,  C.  &  A.  R.  Co.  v.  Gibbes,  142  U.  S.  386,  12  Sup.  Ct 
35  L.  ed.  1051;  Chicago  &  G.  T.  R.  Co.  v.  Wellman,  143  U.  S. 
339,  12  Sup.  Ct.  400,  36  L.  ed.  176;  Pearsall  v.  Groat  Northern  R.  Co., 
161  U.  S.  646,  665,  16  Sup.  Ct.  705,  40  L.  ed.  838,  844;  Louisville  & 
N.  R.  Co.  v.  Kentucky,  161  U.  S.  677,  695,  16  Sup.  Ct.  714,  40  L.  ed. 
849,  857;  Wisconsin,  M.  &  P.  R.  Co.  v.  Jacobson,  179  U.  S.  287,  21 
Sup.  Ct.  115,  45  L.  ed.  194;  Minneapolis  &  St.  L.  R.  Co.  v.  Mil  • 
186  U.  S.  257,  22  Sup.  Ct.  900,  46  L.  ed.  1151;  Minneapolis  &  St.  L. 
R.  Co.  v.  Minnesota,  193  U.  S.  53,  24  Sup.  Ct.  396,  48  L.  ed.  614; 
Chicago,  B.  &  Q.  R.  Co.  v.  Illinois,  200  U.  S.  561,  26  Sup.  Ct.  341,  50 
L.  ed.  596,  605;  Atlantic  Coast  Line  R.  Co.  v.  Florida,  203  U.  S.  256, 
27  Sup.  Ct.  108,  51  L.  ed.  174;  So-ahoard  Air  Line  R.  Co.  v.  Florida, 
203  U.  S.  261,  27  Sup.  Ct.  109,  51  L.  ed.  175. 


84  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  61 

the  Commission  beyond  the  matters  and  bounds  fixed 
by  article  IX,  section  18,  of  the  state  constitution,  nor 
alter,  amend,  revise,  or  repeal  any  section  of  the  con- 
stitution from  sections  18  to  34,  inclusive,  but  is  merely 
supplementary  to  section  18,  and  provides  a  remedy 
for  the  enforcement  and  protection  of  certain  rights 
thereby  secured,  and  by  legislative  construction  de- 
fines those  rights  so  that  their  exact  limits  may  be 
known.97 

§  61.     Oregon. — The    Oregon   Railroad    Com 

mission  Act,68  providing  for  filling  the  offices  by  elec- 
tion in  joint  session,  has  been  held  not  to  be  violative 
of  the  provisions  of  the  state  constitution.69     The  pur- 

67  Missouri,  O.  &  G.  E.  Co.  v.  State   (Okl.),  119  Pac.  117. 

"Public  facilities"  or  "public  conveniences,"  as  used  in  article  IX,  sec- 
tion 18,  of  the  Oklahoma  Constitution,  construed  to  include  union  pas- 
senger depots.  Examine  "Constitutional  Law,"  Cent.  Dig.,  §§  14,  15; 
Dec.  Dig.,  §  20;  also,  6  Words  and  Phrases,  5780;  2  Words  and  Phrases, 
1556-1558;  3  Words  and  Phrases,  2637. 

68  Or.  Daws,   1907,  c.   53. 

69  Briggs  v.  McBride,  17  Or.  648,  21  Pac.  878;  Eddy  v.  Kincaid,  28 
Or.  557,  41  Pac.  157;  State  v.  Compson,  34  Or.  27,  54  Pac.  349. 

Oregon  Railroad  Commission  Act  (Laws  1907,  c.  52)  was  closely 
modeled  upon  the  Wisconsin  Railroad  Commission  Act  (Wisconsin  Laws 
1905,  c.  362),  as  amended  by  Laws  of  1905,  Special  Session,  cc.  13,  17, 
.  and  'is  similar  in  many  of  its  general  provisions  and  in  much  of  its 
language  to  the  Railroad  Commission  Act  of  Ohio  and  Nevada.  The 
Federal  Act  regulating  commerce  with  its  amendment  and  supple- 
mentary acts  is  also  closely  followed  by  this  statute.  Some  of  the  sec- 
tions are  modeled  upon  the  Iowa,  Minnesota  and  Texas  statutes. 

The  Interstate  Commerce  Act  above  referred  to  is  that  of  February 
14,  1887  (24  Stats,  at  Large,  379,  1  Supp.  Rev.  Stats.  U.  S.  529),  as 
amended  by  acts  of  March  2,  1889  (25  Stats,  at  Large,  855,  1  Supp. 
Rev.  Stats.  U.  S.  684),  and  by  act  of  February  14,  1891  (26  Stats,  at 
Large,  743,  1  Supp.  Rev.  Stats.  U.  S.  891),  and  by  act  of  February 
8,  1895  (28  Stats,  at  Large,  643,  2  Supp.  Rev.  Stats.  U.  S.  369),  and 
by  act  of  June  29,  1906  (34  Stats,  at  Large,  584). 

The  Oregon  Act  (Laws  1907,  p.  75,  §  23)  is  not  inimical  either  to 
the  fundamental  law  of  the  state  or  to  the  commerce  laws  of  the  federal 
constitution.     Oregon  R.  &  Nav.  Co.  v.  Campbell,  173  Fed.  957. 

Section  27  of  the  Oregon  Act,  establishing  an  Interstate  Commerce 
Commission    (Stats.   1907,  p.  75),  being  void  because  in  conflict  with 


§  61  CONSTITUTIONALITY   OF   ACT.  85 

pose  of  the  Oregon  Act,  as  indicated  by  sections  11, 
18  and  20,  on  the  part  of  the  legislature,  was  to  limit 
the  scope  of  the  exercise  of  the  Commission's  power  as 
to  commerce  within  the  state;  and  it  is  manifest  the 
legislature  did  not  intend  to  regulate  interstate  traffic, 
in  violation  of  the  commerce  clause  of  the  federal  con- 

the  commerce  clause  of  the  federal  constitution,  does  not  render  the 
entire  act  void,  as  the  remainder  of  the  act  may  stand  as  valid  and 
operative  without  the  provisions  of  that  section.  So.  Pac.  Co.  v.  Camp- 
bell, 189  Fed.  696. 

Federal  Constitution,  Amendment  14,  section  1,  is  not  violated  by  the 
Oregon  Railroad  Commission  Act.  Oregon  R.  &  Nav.  Co.  v.  Campbell, 
173  Fed.  957;  Portland,  R.  L.  &  P.  Co.  v.  Railroad  Commission,  56  Or. 
469,  105  Pac.  709,  109  Pac.  273. 

Federal  Constitution,  article  I,  section  8,  is  not  invaded  by  the  Railroad 
Commission  Act  of  Oregon.  Oregon  R.  &  Nav.  Co.  v.  Campbell,  173 
Fed.  957. 

The  power  of  the  Oregon  Railroad  Commission  to  fix  rates  under 
statute  of  February  18,  1907  (Laws  1907,  p.  67),  was  attacked  by  bill 
for  preliminary  injunction  preventing  the  putting  in  force  of  rates 
fixed  by  the  Commission.  The  allegations  of  the  bill  were  to  the  effect 
that  the  Railroad  Commission  Act  of  Oregon  and  the  order  of  the  Com- 
mission, made  in  pursuance  thereof,  fixing  the  rates  complained  of, 
were  an  invasion  of  the  exclusive  right  of  Congress  to  regulate  interstate 
commerce,  and  also  on  the  ground  that  the  rates  so  fixed  and  established 
were  unreasonable  and  unjust,  and  that  the  complainant  was  practically 
inhibited  from  having  the  question  as  to  whether  the  rates  were  in 
fact  unreasonable  and  unjust  adjudicated  in  a  tribunal  of  justice  by 
reason  of  the  supposed  drastic  penalty  imposed  for  an  attempt  to  obtain 
such  an  adjudication.  This  was  held  to  present  a  federal  question,  and 
gave  the  circuit  court  jurisdiction,  whether  the  complainant's  positions 
were  maintainable  in  fact  or  not ;  because  the  federal  questions  remain, 
and  afford  a  basis  for  interposition  by  the  federal  courts.  Oregon  R. 
&   Nav.  Co.  v.   Campbell,   173  Fed.  957,  966. 

In  this  case  three  federal  and  two  state  questions  were  presented 
under  the  federal  and  state  constitutions  in  which  the  validity  of  the 
order  of  the  Railroad  Commission  was  attacked. 

I.  Federal  Question. — First:  That  the  order,  if  effective,  regulates 
interstate  commerce. 

Second :  That  by  reason  of  the  exorbitant  and  drastic  penalties 
imposed  by  the  act  for  the  violation  of  any  order  adopted  by  the  Rail- 
road Commission,  such  act  in  practical  effect  deprives  the  complainant 


86  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  61 

stitution.70  Under  the  act  the  Commission  is  charged 
with  many  duties  that  are  not  executive,  but  purely 
administrative  or  ministerial.  It  must  inquire  into 
the  management  of  the  business  of  railroads,  and  shall 
keep  itself  informed  as  to  the  manner  and  method  in 
which  the  same  is  conducted  (section  39  of  the  act); 
it  shall  require  annual  reports  (section  40);  it  may 
require  a  uniform  system  of  accounting  (section  43) ; 
it  may  require  a  list  of  passes  to  be  furnished  (section 
45),  and  it  shall  make  report  to  the  governor  annu- 
ally, and  recommend  such  legislation  as  may  be 
deemed  important  (section  46).  All  these  things 
would  seem  to  be  merely  administrative.  Others  would 
seem  to  be  more  nearly  executive,  as,  for  instance,  the 
Commission  is  empowered  to  make  complaint  before 
the  Interstate  Commerce  Commission,  with  a  view 
to  rectifying  excessive  or  discriminatory  rates  and 
charges  (section  47).  And  it  shall  inquire  into  any 
neglect  or  violation  of  the  laws  of  the  state  by  any 
railroad  corporation  doing  business  therein.  It  is  also 
made  its  duty  to  enforce  the  provisions  of  the  act  as 
well  as  all  other  laws  relating  to  railroads  (section 
57).  But  the  Commission  is  no  exception  to  the  cre- 
ation of  administrative  officers  and  Boards  of  Com- 

of  the  equal  protection  of  the  law,  and  subjecting  property  to  be  taken 
■without  due  process  of  law. 

Third:  That  the  other  effect  of  the  order,  if  operative,  would  be  to 
prevent  the  complainant  from  making  fair  net  earnings,  and  would 
thus  deprive  the  complainant  of  its  property  without  due  process  of  law. 

II.  State  Questions. — First:  Whether  the  rates  established  by  the 
order  of  the  Commission  were  reasonable. 

Second:  Whether  the  Oregon  legislative  assembly  by  such  act  confers 
upon  the  Railroad  Commission  legislative,  executive  and  judicial  func- 
tions, in  violation  of  the  provisions   of  the  state  constitution. 

The  courts  say:  "If  any  of  these  questions  be  answered  in  the  af- 
firmative, the  work  of  the  Railroad  Commission  must  fail  in  its  pur- 
pose." And  in  an  exhaustive  and  well-reasoned  opinion,  answer  them 
all  in  the  negative.     Oregon  R.  &  Nav.  Co.  v.  Campbell,  173  Fed.  &57. 

70  Oregon  R.  &  Nav.  Co.  v.  Campbell,  173  Fed.  980. 


§  62  CONSTITUTIONALITY   OF   ACT.  87 

mission,  charged  with  like  and  kindred  duties.  The 
legislature  has  created  a  Board  of  Railroad  Commis- 
sioners, a  Board  of  Fish  Commissioners,  a  Board  of 
Agriculture  and  Insurance  Commissioners  (the 
Secretary  of  State  being  made  ex-officio  of  such  Com- 
mission), a  Food  and  Dairy  Commission,  and  a  Com- 
missioner of  the  Bureau  of  Labor  Statistics  and 
Inspector  of  Factory  and  "Workshops.  It  is  especially 
made  the  duty  of  this  latter  officer  to  cause  to  be 
enforced  all  the  laws  regulating  the  employment  of 
children,  minors  and  women, — a  function  executive 
in  its  character,  for  the  executive  department  is 
charged  with  the  duty  to  see  that  the  laws  are  faith- 
fully executed.  But  all  these  boards  and  officers,  in 
the  general  scope  of  their  powers,  are  charged  with 
administrative  rather  than  executive  duties.  Such  is 
the  character  of  the  Railroad  Commission  Act,  so  that 
the  situation  comes  to  this:  The  legislature  has  dele- 
gated to  the  Coj|pnission  the  duty  of  fixing  rates, 
which  it  does  not  add  to  legislative  action,  but  as  an 
auxiliary  to  the  exercise  of  legislative  functions,  which 
the  authorities  all  sanction  as  falling  within  the  legis- 
lative power.  There  can  be  no  valid  objection  to  con- 
ferring such  authority  upon  an  administrative  board. 
The  board  thereafter  administers  the  law  as  devised. 
Certainly  such  a  regulation  does  not  clothe  an  officer 
or  officers  in  one  department  with  official  duties  per- 
taining to  those  of  another  department.  Nor  does  it 
commingle  the  appropriate  functions  of  the  several 
departments  of  government.71 

§  62.  Texas. — The  Texas  Railroad  Commis- 
sion Act  empowers  the  Commission  to  classify  and 
fix  rates  of  compensation  for  carriage  of  freight,  upon 
giving  appropriate  notice  to  the  railroad  company 
affected;  it  being  further  provided  that,  when  a  rail- 

7i  Oregon  B.  &  Nav.  Co.  v.  Campbell,  173  Fed.  957,  970. 


88  CALIFORNIA   PUBLIC    UTILITIES  ACT.  §  62 

road  company  or  party  in  interest  is  dissatisfied  with 
the  decision  of  any  rate  or  classification,  such  railroad 
company,  etc.,  may  file  a  petition  in  a  court  of  com- 
petent jurisdiction  against  such  Commission  as  de- 
fendant, and  that  the  reasonableness  of  the  rate,  or 
charge,  or  classification,  may  there  be  determined; 
and  in  this  the  provision  is  very  similar  to  the  Oregon 
Act.  Stringent  penalties  are  provided  for  failure  on 
the  part  of  the  railroad  company  affected  to  comply 
with  the  order  and  direction  of  the  Commission. 

The  act  was  first  called  in  question  because  of  the 
drastic  penalties  imposed  for  violation  of  any  of  its 
provisions,  and  it  was  decided  that  the  clauses  pro- 
viding punishment  might  be  stricken  out  and  the  act 
stand  as  a  valid  law  for  the  regulation  of  the  rates 
of  traffic.  In  passing  upon  the  constitutionality  of 
the  act,  Mr.  Justice  Brewer,  then  upon  the  bench  of 
the  supreme  court  of  the  United  States,  who  wrote  the 
opinion,  says:  "There  can  be  no  doubt  of  the  general 
pov7er  of  a  state  to  regulate  the  fares  and  freight 
which  may  be  charged  and  received  by  railroad  or 
other  carriers,  and  that  this  regulation  can  be  car- 
ried on  by  means  of  a  Commission.  Such  a  Commis- 
sion is  merely  an  administrative  board  created  by 
the  state,  and  carrying  into  effect  the  will  of  the  state 
as  expressed  by  its  legislature.72  No  valid  objection, 
therefore,  can  be  made  on  account  of  the  general 
features  of  this  act — those  by  which  the  state  has 
created  the  Eailroad  Commission  and  intrusted  it  with 
the  duty  of  prescribing  rates  and  fares  and  freight,  as 
well  as  other  regulations  for  the  management  of  the 
railroad  of  the  state."  73 

72  Railroad  Commission  Cases,  116  U.  S.  307,  6  Sup.  Ct.  334,  338, 
1191,   29  L.   ed.   636. 

"  Eeagan  v.  Farmers'  L.  &  T.  Co.,  154  U.  S.  362,  14  Sup.  Ct.  1047, 
38  L.  ed.   1014. 

The  Texas  constitutional  provision  as  to  the  distribution  of  powers 
is   as   follows:   "The  powers  of  the  government   of  the  state   of   Texas 


§§63,64  CONSTITUTIONALITY   OF   ACT.  89 

§  63.  Wisconsin. — The  Wisconsin  Act  of  De- 
cember 23,  1911,  which  assumes  and  declares  the  a 
taining  of  a  railroad  rate,  charge,  classification,  or  ser- 
vice which  is  exact,  reasonable  aud  just,  and  applicable 
to  every  special  instance  or  condition,  and  discovered 
by  investigation,  and  commits  the  duty  of  such  inves- 
tigation to  the  Railroad  Commission  to  ascertain  and 
disclose  that  rate,  classification,  or  service,  and  pro- 
vides that  when  so  ascertained  and  disclosed,  the 
mandate  of  the  statute  that  rates,  fares,  charges,  clas- 
sifications, and  joint  rates  fixed  by  the  Commission 
shall  be  in  force  and  prima  facie  reasonable,  is  a  valid 
exercise  of  the  constitutional  powers  of  the  legislature 
inasmuch  as  the  same  declares  general  rules  of  law 
to  take  effect  in  the  particular  instance  investigated 
by  the  Commission,  contingent  upon  the  ascertainment 
and  promulgation  by  the  Commission  of  what  is  rea- 
sonable in  the  particular  instance  or  under  the  peculiar 
conditions  designated.74 

§  64.  Distribution  of  Powers  of  Government. — It 
is  highly  important  that  there  be  a  separation  in  the 
government  of  the  state  of  the  legislative,  judicial  and 
executive  functions,  and  that  the  officers  of  one  de- 
partment shall  not  exercise  the    functions    conferred 

shall  be  divided  into  three  distinct  departments,  each  of  which  shall 
be  confided  to  a  separate  body  of  magistracy,  to  wit:  Those  which  are 
legislative,  to  one,  those  which  are  executive  to  another,  and  those 
which  are  judicial  to  another;  and  no  person  or  collection  of  persons, 
being  of  one  of  these  departments,  shall  exercise  any  power  properly 
attached  to  either  of  the  others,  except  in  the  instances  herein  ex- 
pressly permitted." 

No  special  provision  is  otherwise  made  in  the  constitution  for  the 
creation  of  a  Bailroad  Commission. 

74  See  Minneapolis,  St.  P.  &  Ste.  Marie  R.  Co.  t.  Railroad  Commis- 
sion, 136  Wis.  146,  116  N.  W.  915. 

Wisconsin  Statutes  of  1898,  section  1770b,  regulating  foreign  corpora- 
tions, is   not  beyond   the   power   of   the   state  when   applied   to    t 
contracts    between    Wisconsin   points.     Independent    Tug   Line    v.   Lake 
Superior  Lumber  &  Box  Co.  (Wis.),  131  N.  W.  408. 


90  CALIFORNIA   PUBLIC   UTILITIES   ACT.  §  64 

upon  another;  under  our  system  of  government,  how- 
ever, the  absolute  independence  of  the  departments  of 
state,  and  the  complete  separation  of  the  powers  is 
impracticable,  and  was  not  intended.75     The  division 

75  In  re  Sims,  54  Kan.  1,  11,  37  Pac.  135,  45  Am.  St.  Rep.  261,  25 
L.  R.  A.  110. 

The  constitution  of  the  United  States  has  effectively  segregated  such 
powers  of  government,  without  any  express  declarations  to  that  effect. 
That  instrument  provides  (article  I,  section  1),  that  "all  legislative 
powers  herein  granted  shall  be  vested  in  a  Congress  of  the  United 
States";  it  also  provides  (article  II,  section  1)  that  "executive  powers 
shall  be  vested  in  a  President  of  the  United  States";  and  that  (article 
III,  section  1)  "the  judicial  powers  of  the  United  States  shall  be  vested 
in  one  supreme  court,  and  such  inferior  courts  as  the  Congress  may  from 
time  to  time  ordain  and  establish."  Thus  it  is  that,  while  the  powers  of 
government  under  the  national  constitution  are  actually  apportioned  to 
or  divided  into  three  departments,  there  is  no  express  declaration  that 
they  shall  be  so  apportioned  or  divided.  The  thing  is  done  by  establish- 
ing, severally,  each  of  the  departments  as  if  the  constitution  had  in  so 
many  words  so  declared.  In  legal  effect,  therefore,  there  is  no  difference 
between  the  division  of  governmental  functions  under  the  federal  con- 
stitution as  compared  with  the  state  constitutions  in  which  it  is  specific- 
ally ordained  that  the  powers  shall  be  divided  into  the  three  departments, 
save  as  to  such  constitutions  in  which  the  administrative  powers  are  in- 
cluded with  the  executive  in  the  state   government. 

The  principle  of  the  segregation  of  the  three  functions  of  govern- 
ment was  in  a  concept  incident  to  Revolutionary  times,  leading  to  the 
adoption  of  the  federal  constitution,  but  was  a  maxim  having  its  out- 
growth from  the  British  constitution,  the  meaning  of  which  is'  that 
"where  the  whole  power  of  one  department  is  exercised  by  the  same 
hands  which  possess  the  whole  power  of  another  department,  the  funda- 
mental principles  of  a  free  constitution  are  subverted."  The  Federalist, 
p.  375. 

Montesquieu  says:  "There  can  be  no  liberty,  where  the  legislative  and 
executive  powers  are  united  in  the  same  person  or  body  of  magistrates 
....  or  if  the  power  of  charging  be  not  separate  from  the  legislative 
and  executive  powers."     Spirit  of  Laws,  bk.  XI,  6. 

Under  the  British  constitution  there  is  also  a  separation  of  these  dis- 
tinctive departments  of  government,  but  there  remains  a  blending,  more 
or  less,  of  the  powers.  Thus  the  executive  retains  the  prerogative  of 
making  treaties,  which,  under  certain  limitations,  have  the  force  of  legis- 
lative acts;  members  of  the  judiciary  are  appointed  by  the  executive; 
one  branch  of  the  legislative  acts  as  constitutional  advisers  to  the  ex- 
ecutive, and  at  the  same  time  has  the  sole  power  in  cases  of  impeach- 
ment, and  not  invested  with  the  supreme  appellate  jurisdiction  in  all 
other   cases;    and    the   judiciary   department    is   so   far   connected   with 


§  64  CONSTITUTIONALITY   OF   ACT.  91 

of  governmental  powers  into  the  three  departments 
above  enumerated,  while  of  the  greatest  importance  in 
the  creation  and  organization  of  a  state,  and  from  the 
viewpoint  of  constitutional  law  or  otherwise,70  is  not 
an  exact  classification,  because  no  such  delimitation  of 
governmental  powers  is  possible.77 

Under  constitutional  divisions  of  the  powers  of  the 
state  into  the  three  departments  of  legislative,  execu- 

the  legislative  department  as  to  participate  in  its  deliberation  although 
not  entitled  to  vote  on  the  passage  of  laws. 

Mr.  Justice  Story  says:  "When  we  speak  of  the  separation  of  the 
three  great  powers  of  government,  and  maintain  that  the  separation 
is  indispensable  to  public  liberty,  we  are  to  understand  this  maxim 
in  a  limited  sense.  It  is  not  meant  to  affirm  that  they  must  be  kept 
wholly  and  entirely  separate  and  distinct  and  have  no  common  link  of 
connection  or  dependence,  the  one  upon  the  other,  in  the  slightest  degree. 
The  true  meaning  is  that  the  whole  power  of  one  of  these  departments 
6hould  not  be  exercised  by  the  same  hands  which  possess  the  whole 
power  of  either  of  the  other  departments,  and  that  such  exercise  of 
the  whole  power  would  subvert  the  principle  of  a  free  constitution." 
Story's  Constitution. 

76  "The  difference  between  the  departments  undoubtedly  is  that  the 
legislative  makes,  the  executive  executes  and  the  judicial  construes  the 
law."  Mr.  Justice  Marshall  in  Wayman  v.  Southland,  24  U.  S.  (10 
Wheat.)   1,  46,  6  L.  ed.  253. 

"That  which  distinguishes  a  judicial  from  a  legislative  act  is  that 
the  one  is  a  determination  of  what  the  existing  law  is  in  relation  to 
some  existing  things  already  done  or  happened,  while  the  other  is  a 
predetermination  of  what  the  law  shall  be  for  the  regulation  of  all 
future  cases  falling  under  its  provision."  Cooley's  Constitutional  Limita- 
tions, 7th  ed.,  132. 

77  Minneapolis,  St.  P.  &  Ste.  Marie  R.  Co.  v.  Railroad  Commission, 
136  Wis.  146,  162,  116  N.  W.  905. 

The  separation  of  the  powers  of  government  is  complete  in  theory 
only.  State  ex  rel.  Taylor  v.  Missouri  Pac.  R.  Co.,  76  Kan.  467,  474, 
92  Pac.   606. 

"The  so-called  three  political  estates,  the  legislative,  the  executive  and 
the  judiciary,  seem  ever  to  have  been,  as  they  are  with  us  to-day,  in 
a  state  of  flux."     1  Thrope's  Hist.   U.  S.  14. 

The  idea  of  a  three-department  government  is  common  to  all  the 
state  constitutions  as  well  as  to  the  federal  constitution;  but  provisions 
vary  appreciably  as  to  the  delegation  of  powers  that  may  be  exen 
by  the  one  department  or  the  other.  None  of  the  state  constitutions 
break  on  a  strict  line  of  legislative,  executive  and  judicial  functions. 
And  in  an  exercise  of  these  powers  it  has  not  been  possible,  where  found 


92  CALIFORNIA   PUBLIC    UTILITIES  ACT.  §  64 

tive  and  judicial,  there  can  be  no  absolute  line  of 
demarcation  between  the  functions  of  these  three  de- 
partments, and  where  it  is  scarcely  ascertainable 
whether  the  several  powers  conferred  by  statute  be- 
long more  properly  to  the  one  or  to  the  other  depart- 
ments, and  their  assignment  works  no  practical 
encroachment  upon  the  functions  of  another  depart- 
ment, the  fact  that  all  such  powers  are  vested  in  a 
single  body  or  tribunal  will  not  invalidate  the  stat- 
ute.78 Hence  a  delegation  of  power  to  the  Railroad 
Commission  is  not  in  violation  of    the  constitutional 

expedient,  to  observe  with  exactness  absolute  lines  of  cleavage.  Oregon 
R.  Nav.  Co.  v.  Campbell,  173  Fed.  957,  969. 

The  blending  of  the  co-ordinate  powers  of  government  in  this  country 
in  the  trenching  of  one  branch  of  the  government  upon  the  powers  and 
functions  of  another  is  shown  by  many  particulars,  among  which  are: 
(1)  The  powers  of  the  legislature  to  regulate  the  procedure  in  courts 
of  justice  and  to  fix  the  salaries  of  the  executive  officers  and  the  mem- 
bers of  courts  of  justice,  and  to  sit  in  judgment  of  removal  of  the 
judges  from  office.  (2)  The  judiciary  may  pass  upon  the  constitu- 
tionality of  laws  enacted  by  the  legislature,  and  set  them  aside  where 
found  not  to  be  in  accordance  with  the  letter  and  spirit  of  the  con- 
stitution. 

These  facts  demonstrate  the  impossibility  of  fixing  absolute  lines  of 
cleavage  so  that  there  will  be  no  trenching,  in  any  degree  or  measure, 
of  the  functions  of  one  department  upon  those  of  another.  Latitude 
must  be  allowed  in  this  matter  in  order  to  the  greatest  practical  ex- 
ercise of  the  co-ordinate  power  conferred.  That  is  to  say,  there  is  no 
absolute  line  of  cleavage  in  governmental  range,  under  our  republican 
form  of  government,  that  will  leave  the  one  department  absolutely  free 
from  the  domination  in  some  way  or  measure  of  another  department.  As 
a  matter  of  fact,  the  concept  of  our  form  of  government  itself  carries 
with  it  the  idea  that  the  powers  of  one  department  should  be  adaptable  in 
and  exercise  to  operate  as  a  check  and  bar  upon  the  appropriate  powers 
of  another  department.  See  Oregon  R.  &  Nav.  Co.  v.  Campbell,  173  Fed. 
957,   968. 

78  Oregon  R.  &  Nav.  Co.  v.  Campbell,  173  Fed.  957. 

For  full  collection  of  authorities,  see  10  Cent.  Dig.,  col.  1131,  §  48 
et  seq.;  4  Dec.  Dig.,  p.  1692,  §  50  et  seq.;  Am.  Dig.,  tit.  "Constitutional 
Law,"  §  50  et  seq. 


§  64  CONSTITUTIONALITY   OF   ACT.  93 

requirements  that  the  legislative,79  executive  and 
judicial  departments  shall  be  kept  separate.80 

The  question  of  the  validity  of  such  a  delegation 
arose  under  the  Oregon  Railroad  Commission  Act, 
passed  February  14,  1907.81  Under  the  constitution 
of  Oregon,  as  we  have  already  seen,82  the  powers  of 
government  of  the  state  are  divided  into  three  sepa- 
rate departments, — the  legislative,  the  executive  (in- 
cluding the  administrative),  and  the  judicial, — and 
that  no  person  charged  with  the  official  duties  under 
one  of  these  departments  is  competent  to  exercise  any 
functions  of  the  other,  except  as  provided  in  the  con- 
stitution.    The  act  was  held  to  be  constitutional.83 

The  Iowa  constitution  provides  for  the  same  distri- 
bution of  powers  in  identically  the  same  terms  as  the 

79  "The  establishment  of  a  rate  is  the  making  of  a  rule  for  the  future, 
and  therefore  is  an  act  legislative,  not  judicial,  in  kind."  Mr.  Justice 
Holmes,  in  Prentis  v.  Atlantic  Coast  Line,  211  U.  S.  210,  226,  29  Sup. 
Ct.  67,  71,  53  L.  ed.  151. 

"The  legislature  has  power  to  fix  rates,  and  the  extent  of  judicial 
interference  is  to  protect  against  unnecessary  rates."  Chicago  &  G. 
T.  R.  Co.  v.  Wellman,  143  U.  S.  339,  344,  12  Sup.  Ct.  400,  402,  36  L. 
ed.  176. 

so  See  State  ex  rel.  Taylor  v.  Missouri  Pac  R.  Co.,  76  Kan.  467,  92 
Pac.  606. 

See,  also,  authorities  10  Cent.  Dig.,  col.  1369,  §§  99,  100,  144. 

"The  question  of  the  reasonableness  of  a  rate  of  charge  for  transporta- 
tion by  a  railroad  company,  involving  as  it  does  the  element  of  reason 
both  as  regards  the  company  and  as  regards  the  public,  is  eminently 
a  question  for  judicial  investigation  requiring  due  process  of  law  for 
its  determination."  Chicago,  M.  &  St.  P.  R.  Co.  v.  Minnesota,  134  U. 
S.  418,  458,  10  Sup.  Ct.  462,  467,  33  L.  ed.  970. 

"It  is  one  thing  to  inquire  whether  the  rates  which  have  been  charged 
and  collected  are  reasonable — that  is  a  judicial  act;  but  an  entirely 
different  thing  to  prescribe  rates  which  shall  be  charged  in  the  future — 
that  is  a  legislative  act."  Interstate  Commerce  v.  Cincinnati,  N.  O.  & 
Texas  Pac.  R.  Co.,  167  U.  S.  479,  499,  17  Sup.  Ct.  896,  900,  42  L.  ed.  243. 

si  Or.  Laws  1907,  p.  67. 

82  See  ante,  c.  2,  §  33. 

83  See  §  61,  this  chapter. 


94  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  65 

Oregon  constitution,  with  the  exception  that  the  ex- 
ecutive is  not  made  to  include  the  administrative 
functions,  and  no  special  provision  is  made  otherwise 
for  the  establishment  of  a  Railroad  Commission; 84  and 
the  delegation  of  powers  under  the  Iowa  Act  was  held 
to  be  constitutional.85 

The  Wisconsin  constitution  likewise  provides  for 
the  division  of  the  government  into  the  three  separate 
departments  above  enumerated,  and  also  provides  that 
no  person  charged  with  official  duties  under  one  de- 
partment shall  exercise  any  of  the  functions  under 
another  department,  except  as  otherwise  specially 
provided  in  the  constitution  itself;86  and  the  Wiscon- 
sin Railroad  Commission  Act,  delegating  powers  to 
the  Commission,  was  held  not  to  be  violative  of  these 
provisions  of  the  constitution.87 

§  65.  Burdening  Interstate  Commerce. — The  power 
to  make  necessary  and  proper88  regulations89  in  rela- 
tion to  interstate  commerce  is  fixed  in  Congress,  and  the 
states  cannot  control  such  commerce.90  Neither  the 
state  nor  its  officers  can  unreasonably  burden  interstate 
commerce,91  nor  discriminate  against  such  commerce,  or 
interfere  with  the  right  to  carry  it.92     Congress  having 

84  See  c.  2,  §§  15,  16. 

85  See  supra,  §55,  this  chapter;  also,  Oregon  R.  Nav.  Co.  v.  Camp- 
bell, 173  Fed.  957. 

86  See  c.  2,  §§40,  41. 

87  See  §  63,  this  chapter;  also;  Oregon  R.  &  Nav.  Co.  v.  Campbell, 
173   Fed.  957. 

88  "Necessary  and  proper,"  definition  of,  as  used  in  commerce  clause 
of   the    federal   constitution.     United   States   v.    Hoake,    187    Fed.    992. 

89  "Regulate,"  as  used  in  the  federal  constitution,  article  I,  section  8, 
clause  3,  means  to  control.  Titsworth  v.  State,  2  Okl.  Cr.  268,  101  Pac. 
288. 

so  As  to  regulation  of  interstate  and  foreign  commerce,  see  Southern 
Pac.  Co.  v.  Campbell,  189  Fed.  696;  also,  notes  3  L.  R.  A.  107;  24  C. 
C.   A.   13;    29   L.   ed.   U.   S.   Rep.   158. 

9i  Haskell  v.   Cowhen,  187  Fed.  401. 

92  Haskell  v.  Cowhen,  187  Fed.  401. 


§  66  CONSTITUTIONALITY   OF   ACT.  95 

legislated  upon  the  same  subject  in  the  Interstate 
Commerce  Act,93  and  having  covered  the  field,  the  state 
is  excluded  from  enacting  legislation  pertaining  to 
the  same  subject  matter.94  But  where  Congress  has 
not  legislated,  the  state  may  regulate,  and  such  regula- 
tion will  be  operative  until  Congress  does  act.  Where 
Congress  has  acted,  state  legislation  which  seeks  to 
impose  a  direct  burden  upon  interstate  commerce,  or 
to  interfere  directly  with  its  freedom,  encroaches  upon 
the  exclusive  power  of  Congress;  *5  and  a  state  act  in- 
cidentally affecting  interstate  commerce,  and  in  con- 
flict with  an  act  of  Congress  governing  the  same 
subject  matter,  or  an  infringement  upon  the  power 
granted  to  Congress  by  the  federal  constitution,  must 
yield  and  be  superseded  by  the  federal  act.96 

§  66.    Foreign  Corporations. — A  state,  under 

the  exercise  of  its  police  power,  cannot  enact  laws 
which  will  be  a  burden  upon  corporations  engaged  in 
interstate  commerce.  Thus  a  state  regulation  exacting 
from  foreign  corporations  engaged  in  interstate  com- 
merce a  "charter  fee"  of  a  given  per  cent  on  the 
entire  authorized  capital  stock  of  the  corporation,  as 
a  condition  of  continuing  to  do  local  business  within 
the  state,  has  been  held  to  be  invalid ; 97  and  the  im- 

93  Act  February  4,  1887,  c.  104;  24  Stats,  at  Large,  379;  U.  S.  Comp. 
Stats.  1901,  p.  3154;  2  Fed.  Stats.  Ann.  851,  852,  934,  and  3  Fed.  Stats. 
Ann.  809-850. 

a*  Southern  Pac.  Co.  v.  Campbell,  189  Fed.  693. 

90  Hall  v.  De  Cuir,  95  U.  S.  485,  24  L.  ed.  547. 

96  St.  Louis  &  S.  F.  R.  Co.  v.  State,  26  Okl.   62,  107  Pac.  929. 

97  Western  Union  Tel.  Co.  v.  Kansas,  216  U.  S.  1,  30  Sup.  Ct.  190, 
54  L.  ed.  355. 

As  to  exclusion  of  foreign  corporations  being  an  interference  with 
interstate  commerce,  see  notes,  24  L.  R.  A.  311;  60  L.  R.  A.  677;  24  C. 
C.  A.  13. 

As  to  license  or  tax  as  affecting  interstate  commerce,  see  notes,  9  L. 
R.  A.  366;  11  L.  R.  A.  179;  6  L.  ed.  U.  S.  Rep.  23,  678;  32  L.  ed. 
U.  S.  Rep.  229;  37  L.  ed.  U.  S.  Rep.  217;  38  L.  ed.  U.  S.  Rep.  1041;  39 
L.  ed.  U.  S.  Rep.  311,  538. 


96  CALIFORNIA   PUBLIC    UTILITIES  ACT.  §  67 

position  by  the  state  of  an  inspection  law  burdening  a 
foreign  corporation  engaged  in  interstate  commerce, 
or  imposing  an  extra  burden  upon  such  commerce 
within  the  state,  is  invalid.98 

§  67.  Railroads.— A  state  regulation  requir- 
ing all  railroads  to  switch  off  and  deliver  without  dis- 
crimination or  unreasonable  delay  any  freight  or  cars, 
loaded  or  empty,  billed  to  any  point  on  their  track, 
or  connecting  lines,  and  including  intrastate"  as  well 
as  interstate  commerce,  and  making  the  exchange  of  all 
kinds  of  freight  mandatory  on  connecting  railroads, 
is  an  invalid  regulation  by  the  state,  because  inter- 
fering with  the  commerce  clause100  of  the  federal 
constitution.101  And  a  state  regulation  penalizing  a 
railroad  corporation  or  other  carrier  for  failure  to  pay 

as  License  fee  for  inspection  and  grazing  of  livestock  being  transported 
through  the  state  by  an  interstate  carrier  is  invalid.  See  State  v.  But- 
terfield  Livestock  Co.,   17   Idaho,  441,   106  Pae.   455. 

Occupation  tax  imposed  on  express  companies  under  ordinance  ex- 
pressly providing  it  shall  not  apply  except  to  domestic  business  is 
not  a  regulation  of  interstate  commerce.  City  of  Leavenworth  v.  Jawing, 
80  Kan.   58,  101  Pac.  64. 

99  "Interstate"  is  not  found  in  the  federal  constitution,  and  was  prob- 
ably first  used  officially  in  the  Interstate  Commerce  Act  of  1887,  and 
means  "commerce  which  is  completely  internal  which  is  carried  on  be- 
tween man  and  man  in  a  state  or  between  parties  of  the  same  state, 
and  which  does  not  extend  to  or  affect  other  states."  Gibbons  v.  Ogden, 
22  U.  S.   (0  Wheat.)   194,  6  L.  ed.  23. 

"Intrastate"  is  the  converse  of  "interstate,"  and  means  commerce  car- 
ried on  between  persons  or  corporations  of  two  or  more  states.  The 
word  is  not  used  in  the  federal  constitution  and  was  probably  first 
officially  used  in  the  Interstate  Commerce  Act  of  1887,  and  does  not 
appear  to  have  yet  found  its  way  into  the  law  and  other  dictionaries. 

ioo  United  States  Constitution,  art.  I,  section  8. 

ioi  Southern  Pac.  Co.  v.  Campbell,  189  Fed.  696. 

Car  loaded  with  intrastate  freight  placed  on  sidetrack  within  yards 
at  destination  to  await  repairs  to  the  automatic  coupler,  held  to  be  used 
in  interstate  commerce  when  attempting  to  couple  with  another  car 
on  such  track  in  switching.  Delk  v.  St.  L.  &  S.  F.  E.  Co.,  220  U.  S.  580, 
31  Sup.  Ct.  617,  55  L.  ed.  590,  reversing,  158  Fed.  931,  86  C.  C.  A. 
95,  14  Am.  &  Eng.  Ann.  Cas.  233. 


§  67  CONSTITUTIONALITY   OF   ACT.  97 

a  claim  for  loss  or  damage  within  a  stipulated  time 
is  an  unlawful  interference  with  interstate  commerce, 
even  as  applied  to  a  shipment  from  without  the  state, 
where  the  statute  is  construed  by  the  state  courts  as 
affecting  only  the  liability  of  carriers  doing  business 
within  the  state.102  But  a  state  regulation  subjecting 
railroads  to  penalties  for  delay  in  shipment  of  freight 
within  the  state  is  not  invalid  when  applied  to  inter- 
state commerce,  for  the  reason  that  it  tends  to  aid 
such  commerce  by  compelling  performance  of  duty  to 
carry  and  deliver  the  freight  within  a  reasonable 
time.103 

State  regulation  as  to  manner  in  which  interstate 
trains  shall  approach  dangerous  crossings  within  the 
state  is  a  valid  exercise  of  the  state  police  power,  in 
the  absence  of  congressional  action  covering  the  sub- 
ject matter; 104  but  a  state  regulation  requiring  the 
stoppage  of  trains  at  junction  points  with  other  roads 
for  the  transfer  of  passengers  from  one  road  to  an- 
other, when  applied  to  interstate  trains,  amounts  to 
an  unnecessary  and  unlawful  burden  upon  interstate 

102  Atlantic  Coast  Line  R.  Co.  v.  Mazursky,  216  U.  S.  122,  30  Sup. 
Ct.  378,  54  L.  ed.  411. 

As  to  state  statute  imposing  penalty  for  failure  to  settle  claims,  as 
an  interference  with  interstate  commerce,  see  Morris-Scarboro-.Moni: t 
Co.  v.  Southern  Ex.  Co.,  146  N.  C  167,  59  S.  E.  667,  15  L.  R.  A., 
N.  S.,  983;  Raleigh  Iron  Works  v.  Southern  R.  Co.,  148  N.  C  469,  62 
S.  E.  595;  Porter  v.  Charleston  &  S.  R.  Co.,  63  S.  C  169,  41  S.  E. 
108,  90  Am.  St.  Rep.  670;  Cooper  v.  Seaboard  Air  Line  R.  Co.,  78  S. 
C.  81,  58  S.  E.  930;  Coffey  v.  Atlantic  Coast  Line  R.  Co.,  79  S.  C.  150, 
60  S.  E.  447;  De  Lorme  v.  Atlantic  Coast  Line  R.  Co.,  79  S.  C.  370, 
60  S.  E.  440;  Winslow  v.  Atlantic  Coast  Line  R.  Co.,  70  S.  C.  344, 
60  S.  E.  709. 

103  Traynham  v.  Charleston  &  W.  C.  R.  Co.  (S.  C),  71  S.  E.  813. 
See  Hunter  v.  Charleston  &  W.  C.  R.  Co.,  81  S.  C.  169,  62  S.  E.  13; 
Hanley  v.  Kansas  C.  St.  R.  Co.,  187  U.  S.  617,  23  Sup.  Ct.  214.  47  L. 
ed.  333;  Pacific  Coast  S.  S.  Co.  v.  Railroad  Commissioners,  9  Saw. 
253,  18  Fed.   10. 

I"*  Southern  Pac.  R.  Co.  v.  King,  217  U.  S.  524,  30  Sup.  Ct.  594,  54 
L-.  ed.   868. 
7 


98  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  68 

commerce  in  those  cases  where  ample  provisions  are 
already  made  by  the  roads  for  the  traveling  public.105 
State  regulation  requiring  carriers  to  supply  cars 
to  shippers  on  demand  for  the  purpose  of  moving  in- 
terstate shipments,  which  interferes  with  the  rules  and 
regulations  of  the  American  Railway  Association  for 
interchange  of  cars,  has  been  held  to  be  unconstitu- 
tional;106 but  a  state  regulation  prescribing  a  mini- 
mum of  three  brakemen  for  freight  trains  of  more 
than  twenty-five  cars,  operating  within  the  state,  is 
not  an  unconstitutional  regulation  of  interstate  com- 
merce when  applied  to  a  foreign  railroad  company 
engaged  in  such  commerce  within  the  state.107 

§  68.  Subjects  of  Interstate  Commerce  Regulation. 
We  have  already  seen  that  interstate  commerce  is  sub- 
ject entirely  to  regulation  by  Congress,  to  the  exclu- 
sion of  the  powers  of  the  state  acting  under  its  police 
power,  where  Congress  has  acted  upon  the  subject 
matter.108  "Interstate"  and  "intrastate"  commerce 
are  defined  as  above  pointed  out.109  "Commerce"  de- 
notes and  means  merely  a  mutual  selling  or  traffic,  but 
is  a  term  of  the  largest  import,  including  intercourse 
for  the  purpose  of  trade  in  any  and  all  its  forms.110 

105  Herndon  v.  Chicago,  E.  I.  &  P.  E.  Co.,  218  U.  S.  135,  30  Sup. 
Ct.  633,  54  L.  ed.  633. 

loe  St.  Louis  &  S.  W.  E.  Co.  v.  Arkansas,  217  U.  S.  136,  30  Sup. 
Ct.  476,  54  L.  ed.  698. 

107  Chicago,  R.  I.  &  P.  Co.  v.  Arkansas,  219  U.  S.  453,  31  Sup.  Ct. 
275,  55  L.  ed.  290.  See  Nashville,  C.  &  St.  L.  E.  Co.  v.  Alabama,  128 
U  S  96,  9  Sup.  Ct.  28,  32  L.  ed.  352,  2  Inters.  Com.  Rep.  238;  New 
York,  N.'  H.  &  H.  E.  Co.  v.  New  York,  165  U.  S.  628,  17  Sup.  Ct.  418, 
41  L.  ed.  853. 

108  See  §  65,   this  chapter. 

109  See  footnote  99,  this  chapter. 

no  Gibbons  v.  Ogden,  22  U.  S.  (9  Wheat.)  1,  194,  240,  6  L.  ed.  23; 
Welton  v.  Missouri,  91  U.  S.  281,  23  L.  ed.  347. 

Shipment  of  bottles  of  medicine  from  one  state  to  another  is  inter- 
Btate   commerce.     See    United    States   v.    Tucker,    188    Fed.    741. 

As  to  canvassers  and  solicitors,  see  §  69,  this  chapter. 


§  68  CONSTITUTIONALITY   OP   ACT.  99 

But  all  tilings  incident  to  commerce  are  not  included 
in  it.111  Thus,  it  has  been  held  that  the  following 
things  are  not  included  in  "commerce,"  to  wit:  (1) 
Bills  of  exchange;112  (2)  insurance;113  (3)  trade- 
marks;114 (4)  manufacturing,115  and  the  like.  But 
the  transportation  of  persons  and  goods  is  "com- 
merce." 116 

As  to  hawkers  and  peddlers,  see  §  76,  this  chapter. 

As  to  intoxicating  liquors,  see  §§  71,   73,   80,   this  chapter. 

As  to  traveling  salesmen  and  sales  made  by  them,  see  §§69  and  75, 
this  chapter. 

As  to  what  constitutes  "commerce,"  see  2  Dig.  U.  S.  Keps.  (Co-op. 
ed.),  p.  1383,  pars.  37-51,  and  cases  there  cited. 

Interstate  commerce  consists  in  the  transportation  from  a  point  in 
one  state  to  a  point  in  another  state.  Oregon  R.  &  Nav.  Co.  v.  Camp- 
bell, 180  Fed.  253. 

m  As  to  right  of  state  by  statute  to  prevent  waste  of  subterranean 
waters,  natural  gas,  and  oil,  which  are  the  subject  of  interstate  com- 
merce, see  note,  23  L.  R.  A.,  N.  S.,  436. 

"2  Nathan  v.  Louisiana,  49  U.  S.   (8  How.)   73,  12  L.  ed.  992. 

See  Williams  v.  Fears,  179  U.  S.  277,  21  Sup.  Ct.  131,  45  L.  ed.  189. 

See,  also,  note,  12  Am.  St.  Rep.  561. 

us  Paul  v.  Virginia,  75  U.  S.  (8  Wall.)  168,  19  L.  ed.  357;  Insur- 
ance Company  v.  State,  86  Tex.  265,  24  S.  W.  401,  22  L.  R.  A.  491; 
distinguished  in  Aetna  Ins.  Co.  v.  Commonwealth,  106  Ky.  879,  51  S.  W. 
627,  in  which  it  is  held  that  combination  by  insurance  companies  for 
the  purpose  of  maintaining  rates  is  not  in  violation  of  the  anti-trust  law 
(Ky.  Stats.,  §3915). 

Life  insurance  business  conducted  within  a  state  by  a  foreign  corpora- 
tion is  not  commerce  within  the  meaning  of  the  federal  constitution, 
article  I,  section  8.  New  York  Life  Ins.  Co.  v.  Deerlodge  County 
(Mont.),  115  Pac.  911. 

n4  Trademark  Cases  (United  States  v.  Steffens),  100  U.  S.  82,  25 
L.  ed.  550. 

us  United  States  v.  E.  C.  Knight  Co.,  156  U.  S.  1,  15  Sup.  Ct.  249, 
39  L.  ed.  325. 

Commerce  succeeds  manufacturing  and  is  not  a  part  of  it;  and  the 
relation  of  manufacturing  to  interstate  commerce  is  only  incidental  and 
not  direct.  United  States  v.  E.  C.  Knight  Co.,  156  U.  S.  1,  15  Sup.  Ct. 
249,  39  L.  ed.  325. 

us  Passenger  Cases  (Smith  v.  Turner),  48  U.  S.  (7  How.)  283,  12 
L.  ed.  702;  Crandall  v.  Nevada,  73  U.  S.  (6  Wall.)  35,  18  L.  ed.  744,  745; 
Henderson  v.  Wickham,  Mayor  of  New  York,  92  U.  S.  259,  23  L.  ed. 
543. 


100  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  68 

"Interstate  commerce,"  as  used  in  the  United 
States,  denotes  a  commerce  between  the  states  or  be- 
tween persons  of  different  states  of  the  Union.  The 
phrase  in  the  federal  constitution  is  ' '  commerce  among 
the  states,"  which  has  been  interpreted  to  be  "very 
properly  restricted  to  the  commerce  which  concerns 
more  than  one"  state,  or  persons  situated  in  more 
than  one  state.117  It  has  been  said  that  commerce  be- 
tween two  persons  within  the  same  state  is  not  ' '  inter- 
state commerce,"  even  in  those  cases  where  there  is 
a  temporary  deviation  to  the  soil  of  another  state  in 
the  course  of  the  transportation  between  two  points 
within  the  state ; 118  but  the  better  view  is  thought  to 

117  Mr.  Chief  Justice  Marshall,  in  Gibbons  v.  Ogden,  22  U.  S.  (9 
Wheat.)    194,  6  L.  ed.  23. 

As  to  interstate  commerce,  see  an  interesting  collection  of  authorities 
not  found  elsewhere  in  2  Obliter  Dig.  1-42. 

us  See  Lehigh  Valley  K.  Co.  v.  Pennsylvania,  145  U.  S.  192,  12  Sup. 
Ct.  806,  36  L.  ed.  672,  approved  in  Seawell  v.  Kansas  City,  Ft,  S.  & 
M.  B.  Co.,  119  Mo.  235,  238,  24  S.  W.  1004,  1006  (upholding  penalties  for 
"long  and  short  haul  regulations")  ;  Campbell  v.  Chicago,  M.  &  St.  P. 
E.  Co.,  86  Iowa,  587,  53  N.  W.  351,  17  L.  R.  A.  444;  State  v.  Western 
Union  Tel.  Co.,  113  N.  C.  223,  18  S.  E.  391,  22  L.  E.  A.  571;  Leavell 
v.  Western  Union  Tel.  Co.,  116  N.  C.  220,  21  S.  E.  391,  47  Am.  St. 
Rep.  798,  27  L.  E.  A.  843  (upholding  state  tariff  on  telegrams)  ;  Western 
Union  Tel.  Co.  v.  Hughes,  104  Va.  241,  51  S.  E.  225  (both  ends  of 
telegraph  line  being  within  state,  but  passing  without  the  state  and 
returning  in  its  course  between  the  points,  held  company  not  exempt 
from  state  penalties  for  delay) ;  United  States  v.  Lehigh  Valley  E. 
Co.,  115  Fed.  374  (upholding  federal  courts  cannot  mandamus  rail- 
roads as  to  rates  for  same  commodity  between  two  points  within  a  state, 
because  the  road  extends  beyond  the  boundaries  of  the  state)  ;  People 
v.  Knight,  171  N.  Y.  363,  64  N.  E.  155  (cab  service  maintained  in 
hew  York  City  but  interstate  railroad  is  no  part  of  their  interstate 
commerce)  ;  Western  Union  Tel.  Co.  v.  Eeynolds,  100  Va.  465,  41  S.  E. 
857,  93  Am.  St.  Eep.  973  (enforcing  penalties  for  failure  to  forward 
message  from  relay  office,  where  the  message  in  its  course  passed  a 
part  of  the  way  over  the  line  in  another  state,  both  terminals  being 
within  the   state  of  Virginia). 

See  note,  27  Am.  St.  Eep.  560. 

The  Lehigh  Valley  case  above  referred  to  has  been  distinguished 
by  the  supreme  court,  holding  that  where  a  railroad  with  its  termini 
within  the  state  passes  during  a  portion  of  its  course  over  the  territory 


§§  G9-71  CONSTITUTIONALITY   OF   ACT.  101 

be  that  wherever  goods  or  passengers  transported 
from  one  point  to  another  point  within  the  same  state, 
during  the  course  of  the  journey,  pass  into  and  over 
the  soil  of  another  state,  then  the  carriage  becomes 
interstate  commerce  within  the  definition  above 
given.118 

§  69.    Canvassers    and    Solicitors  engaged  in 

securing  orders  for  goods  manufactured  out  of  the 
state  and  to  be  shipped  into  the  state  are  engaged  in 
interstate  commerce,  and  are  not  subject  to  regula- 
tion by  the  state.120 

§  70.    Carriage  of  Expressage  from  one  point 

in  the  state  to  another  point  in  the  state  does  not 
constitute  interstate  commerce.121 

§  71.    Intoxicating  Liquors. — Importing  beer 

into  the  state  and  selling  it  in  the  original  packages 
constitutes  interstate  commerce,122  and  liquors  shipped 

of  another  state,  the  first  state  cannot  regulate  the  charge  for  carriage 
of  goods  between  the  two  termini,  where  such  goods  in  the  course  of 
their  transportation  must  of  necessity  be  hauled  through  the  territory 
of  another  state.  Hanley  v.  Kansas  City  S.  R.  Co.,  187  U.  S.  617,  23 
Sup.  Ct.  215,  47  L.  ed.  333,  affirming  106  Fed.  259. 

us  Frayham  v.  Charleston  &  N.  C.  R.  Co.  (S.  C),  71  S.  E.  813; 
Sternberger  v.  Cape  Fear  &  Y.  V.  R.  Co.,  29  S.  C.  510,  7  S.  E.  836, 
2  L.  R.  A.  105;  State  v.  Haleyman,  55  S.  C.  207,  31  S.  E.  362,  33 
S.  E.  366,  45  L.  R.  A.  567;  Frasier  v.  Charleston  &  W.  C.  R,  Co.,  81 
S.  C.  162,  62  S.  E.  14;  Hunter  v.  Charleston  &  W.  C.  R.  Co.,  81  S.  C. 
169,  62  S.  E.  13;  Hanley  v.  Kansas  City  St.  R.  Co.,  187  U.  S.  617, 
23  Sup.  Ct.  214,  47  L.  ed.  333. 

120  Wilcox  v.  People,  46  Colo.  382,  104  Pac.  408. 
See,  also,  post,  §  75,  this  chapter. 

121  See  State  v.  United  States  Express  Co.   (Minn.),  131  N.  W.  4S9. 
As   to   hawkers   and  peddlers   and   "itinerant   venders,"   see  post,  §  76, 

this  chapter. 

As  to  restriction  by  correspondence  school  being  interstate  commons, 
see  International  Text-book  Co.  v.  Pigg,  217  U.  S.  91,  30  Sup.  Ct.  481, 
54  L.  ed.  678. 

122  State  v.  Pabst  Brewing  Co.   (La.),  55  So.  349. 

As  to  original  packages,  see  §§  73  and  80,  this  chapter. 


102  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  71 

by  carriers  from  one  state  to  another  are  not  subject 
to  regulation  by  the  state  law  governing  intoxicating 
liquors  until  after  they  have  been  delivered  to  the 
consignor  and  cease  to  be  subjects  of  interstate  com- 
merce.123 State  courts  cannot  enjoin  carriers  from 
receiving  intoxicating  liquors  at  a  point  without  the 
state  consigned  to  a  person  within  the  state,  even 
where  the  consignee  intends  to  sell  such  liquor  in 
violation  of  the  state  law.124 

Prohibition  laws  passed  by  a  state  are  a  valid  exer- 
cise of  the  police  power  of  the  state,  and  do  not  relate 
to  or  in  any  way  conflict  with  interstate  commerce.125 
Such  laws,  however,  cannot  prevent  a  resident  of  such 
state  passing  prohibitory  laws  from  ordering  intoxi- 
cating liquors  in  another  state  and  having  them  sent 
to  him  by  an  interstate  carrier  for  consumption  by 
himself  and  family.126 

123  St.  Louis  &  S.  F.  R.  Co.  v.  State,  26  Okl.  300,  109  Pac.  230. 

But  a  brewer  or  owner  of  intoxicating  liquors  in  one  state  cannot  send 
an  agent  or  canvasser  into  a  prohibition  state  to  solicit  orders  for  the 
purchase  of  such  liquors  in  violation  of  the  laws  of  the  latter  state. 
See  post,  footnotes  126,  131,  this  chapter,  and  text  going  therewith. 

124  Gulf,  C.  &  S.  F.  R.  Co.  v.  State  (Okl.),  116  Pac.  176. 

125  McCord  v.  State,  2  Okl.  Cr.  214,  101  Pac.  280. 

126  Schwedes  v.  State,  1  Okl.  Cr.  660,  104  Pac.  765;  High  v.  State,  2 
Okl.  Cr.  161,  101  Pac.  115;  Hudson  v.  State,  2  Okl.  Cr.  176,  101  Pac. 
275;  McCord  v.  State,  2  Okl.  Cr.  214,  101  Pac.  280;  Moreland  v.  State, 
2  Okl.  Cr.  237,  101  Pac.  138. 

Regulation  of  the  taking  of  orders  for  intoxicating  liquors  within  the 
state,  though  such  liquor  is  situated  in  another  state,  is  a  valid  exer- 
cise of  the  police  power  of  the  state,  and  not  repugnant  to  the  com- 
merce clause  of  the  federal  constitution.  State  v.  Lemp  Brewing  Co., 
79   Kan.   705,   102   Pac.   504. 

Advertisement  for  sale  of  liquors  sold  or  kept  for  sale  without  the 
state  may  be  prohibited  within  the  state,  and  such  prohibition  in  no 
way  interferes  with  the  commerce  clause  of  the  federal  constitution 
since  the  passage  of  the  Wilson  Act,  withdrawing,  to  a  certain  extent, 
intoxicating  Uquors  from  the  protection  of  that  clause  of  the  constitu- 
tion.    State  v.  State  Capital  Co.,  24  Okl.  252,  103  Pac.  1021. 

Brewer,  distiller,  or  owner  of  intoxicating  liquors  cannot  send  an 
agent  or  canvasser  into  another  state,  in  which  state  a  prohibitory  liquor 
law  is  in  force,  to  solicit  orders  for  the  purchase  of  intoxicating  liquors 


§§  72-75  CONSTITUTIONALITY    OF   ACT.  103 

§  72.     Natural    Gas  belonging    to  the    owner 

of  the  land,  when  once  reduced  to  possession,  may 
become  the  subject  of  both  intrastate  and  interstate 
commerce  and  regulation.127 

§  73.    Original   Packages. — Where  goods  are 

shipped  in  original  packages  from  one  state  to  another 
they  are  interstate  commerce  until  they  are  delivered 
to  the  consignee,  at  which  time  the  power  of  the  state 
attaches  to  such  package  and  to  the  goods  therein 
immediately  upon  the  delivery  to  such  consignee.128 

§  74.  Pipe-lines  laid  for  the  purpose  of  carry- 
ing natural  gas,  oil,  etc.,  in  interstate  business  are 
within  the  protection  of  the  commerce  clause  of  the 
federal  constitution.128 

§  75.    Sale  by  Sample. — The  sale  of  goods  or 

merchandise  by  sample  or  catalogue,  where  the  goods 
thus  sold  are  situated  or  to  be  manufactured  out  of 
the  state  and  to  be  shipped  within  the  state  and  there 

in  violation  of  the  prohibitory  law  of  such  other  state.  See  §  71,  this 
chapter,  and  especially  footnote  131. 

127  West  r.  Kansas  City  Natural  Gas  Co.,  221  TJ.  S.  229,  31  Sup. 
Ct.  564.  55  L.  ed.  716,  affirming  Kansas  Natural  Gas  Co.  v.  Haskell, 
172  Fed.  545. 

See,  also,  note,  12  L.  E.  A.  652. 

128  State  v.  Eighteen  Casks  of  Beer,  24  Okl.   786,  104  Pac.   1093. 
As  to  when  original  packages  shipped   from  another  state  lose   theii 

character  as  interstate  commerce,  see  §§79  and  80,  this  chapter,  and 
authorities  in  footnote  141. 

Consignee  of  original  package  of  intoxicating  liquors  shipped  from 
another  state  into  the  state  of  Oklahoma  is  entitled  to  receive  the  orig- 
inal package  at  the  depot  and  transport  the  same  to  his  home.  High 
v.  State,  2  Okl.  Cr.  161,  101  Pac.  115;  Moreland  v.  State,  2  Okl.  Cr. 
237,  101  Pac.  3  38;  Hudson  v.  State,  2  Okl.  Cr.  76,  101  Pac.  275;  McCord 
v.  State,  2  Okl.  Cr.  214,  101  Pac.  280. 

As  to  the  nature  of  an  original  package  as  governed  by  the  inter- 
state commerce  law,  see  Ex  parte  Agnew  (Neb.),  131  N.  W.  817;  Ex 
parte  King  (Neb.),  131  N.  W.  820. 

129  See  Haskell  v.  Cowhen,  187  Fed.  401. 


104  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  76 

delivered,  constitutes  interstate  commerce.130  But  the 
owner  of  intoxicating  liquors  in  one  state  cannot  send 
an  agent  or  solicitor  of  orders  for  the  purchase  of  such 
liquor  in  violation  of  the  laws  of  such  state.131 

§  76.    Hawkers  and  Peddlers  and  "Itinerant 

Venders." — Hawkers  and  peddlers  and  "itinerant 
venders"  are  not  within  the  protection  of  the  inter- 
state commerce  clause  of  the  federal  constitution;132 
and  a  person  maintaining  a  general  store  in  the  city 
of  another  state  and  traveling  from  place  to  place 
taking  orders  for  his  goods  and  subsequently  packing 
the  goods  in  packages  without  mark  or  direction  and 
shipping  them  into  the  state  for  the  purpose  of  de- 
livery, and  then  delivering  such  as  are  accepted  and 
such  as  are  rejected  storing  in  a  storehouse  provided 
within  the  state  for  that  purpose,  is  not  carrying  on 

130  Wilcox  v.  People,  46  Colo.  382,  104  Pac.  408.  See  City  of  Kins- 
ley v.  Dyerly,  79  Kan.  1,  98  Pac.  228;  State  v.  Glasby,  50  Wash.  598, 
97  Pac.  734;   State  v.  Davis,  50  Wash.  704,  97  Pac.  737. 

Picture  frames  sold  by  sample  to  be  manufactured  in  another  state 
and  sent  by  express  either  to  the  purchaser  or  to  the  agent,  and  the 
moneys  collected  and  sent  to  the  manufacturer,  is  interstate  business. 
Brennan  v.  Titusville,  153  U.  S.  289,  14  Sup.  Ct.  829,  38  L.  ed.  719. 

Selling  knives  by  sample  without  having  a  stock  along,  or  any  place 
within  the  state  from  which  to  furnish  customers  or  fill  orders,  and 
every  knife  for  which  order  was  taken  filled  by  a  firm  from  without  the 
state,  constitutes  interstate  commerce.  People  v.  Bunker,  128  Mich. 
160,  87  N.  W.  90. 

i3i  Creigter  v.  Shepler,  77  Kan.  834,  101  Pac.  619;  State  v.  Sher- 
man, 81  Kan.  874,  107  Pac.  33. 

132  People  v.  Stewart  (Mich.,  Nov.  3,  1911),  132  N.  W.  1070;  Jewel 
Tea  Co.  v.  Lee's  Summit,  189  Fed.  280;  People  v.  Sawyer,  106  Mich. 
428,  64  N.  W.  33;  City  of  Muskegon  v.  Zeeryp,  134  Mich.  181,  96  N.  W. 
502;  City  of  Alme  v.  Clow,  146  Mich.  443,  109  N.  W.  853;  People  v. 
Smith,  147  Mich.  391,  110  N.  W.  1102;  City  of  Muskegon  v.  Hanes,  149 
Mich.  460,  112  N.  W.  1077;  Despres  v.  Zierleyn,  163  Mich.  399,  128  N. 
W.  769. 

As  to  acts  regulating,  being  an  interference  with  interstate  commerce, 
article  I,  section  8  of  the  Federal  Constitution,  see  Smith  v.  Farr,  46 
Colo.  364,  104  Pac.  401;  State  v.  Boyer,  34  Utah,  257,  97  Pac.  129. 


§§77,78  CONSTITUTIONALITY    OF   ACT.  105 

interstate  commerce,  and  is  not  within  the  protection 
of  the  commerce  clause  of  the  federal  constitution.133 

§  77.  Telegraph  Companies  accepting  pro- 
visions of  act  of  Congress  July  24,  1866,  become  agen- 
cies of  the  federal  government  for  the  transaction  of 
political  business  and  are  instrumentalities  of  inter- 
state and  foreign  commerce.134 

§  78.     Waters  of  the  United  States  are  within 

the  power  of  Congress  to  regulate  commerce  there- 
on;136 but  we  have  already  seen  that  the  state  has 
power  to  prohibit  the  waste  of  subterranean  waters, 
natural  gas  or  oil  within  the  state,  in  the  exercise  of 
its  police  power.138 

133  People  v.  Stewart  (Mich.,  Nov.  3,  1911),  132  N.  W.  1070,  distin- 
guishing People  v.  Bunker,  128  Mich.  160,  87  N.  W.  90. 

is*  State  v.  Northwestern  Tel.  Co.  (Mont.),  117  Pac.  93. 

As  to  taxation  by  the  state  of  telegraph  lines  engaged  in  interstate 
and  foreign  commerce,  see  State  v.  Western  Union  Tel.  Co.  (Mont.), 
117  Pac.  93,  citing  Telegraph  Co.  v.  Texas,  105  U.  S.  460,  26  L.  ed. 
1067;  Rotterman  v.  Western  Union  Telegraph  Co.,  127  U.  S.  411,  8 
Sup.  Ct.  1127,  32  L.  ed.  229;  Leloup  v.  Port  of  Mobile,  127  U.  S.  640, 
8  Sup.  Ct.  1383,  32  L.  ed.  311;  Osborne  v.  Florida,  164  U.  S.  654,  17  Sup. 
Ct.  214,  41  L.  ed.  586. 

As  to  power  of  state  to  control  or  impose  burdens  upon  interstate 
telegraph  and  telephone  companies,  see  note,  24  L.  R.  A.  161. 

Assessment  of  franchise  of  telegraph  company,  consisting  of  a  valua- 
tion of  the  right  or  privilege  of  carrying  on  business  within  a  desig- 
nated county,  with  no  separate  valuation  on  the  right  to  do  interstate 
private  businesses  void.  State  v.  Western  Union  Tel.  Co.  (Mont.),  117 
Pac.  93. 

"Within  said  county,"  in  a  valuation  of  a  telegraph  company's  fran- 
chise, has  reference  to  business  originating  within  and  terminating  in 
offices  situate  within  such  county  and  does  not  relate  to  business  wholly 
between  offices  within  the  county.  State  v.  Western  Union  Tel.  Co. 
(Mont.),  117  Pac.  93.  See  Charleston  v.  Postal  Tel.  Co.,  3  Am.  Elect. 
Cas.  56,  9  Ry.  &  Corp.  L.  J.  129;  Western  Union  Tel.  Co.  v.  Meyer,  38 
Fed.  53,  3  L.  R.  A.  449;  Pensacola  Tel.  Co.  v.  Western  Union  Tel.  Co.. 
96  U.  S.  1,  24  L.  ed.  78 ;  Western  Union  Tel.  Co.  v.  Texas,  105  U.  S.  460, 
26  L.  ed.  1067. 

135  Williams  v.  Molter,   187   Fed.   700. 

136  See  supra,  footnote  111,  this  chapter. 


106  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  79 

§  79.  Loss  of  Character  of  Interstate  Commerce. — 
Goods  shipped  from  a  point  without  the  state  to  a 
designated  point  within  the  state  and  there  delivered 
are  interstate  commerce,  but  such  shipment  originat- 
ing as  interstate  commerce  may  lose  its  character 
as  such  and  become  subject  to  state  control.137  When 
a  commodity  transported  has  reached  the  termination 
of  its  journey  and  has  been  delivered  to  the  con- 
signee, it  ceases  to  be  the  subject  of  interstate  com- 
merce, and  the  subsequent  shipment  from  the  point 
of  delivery  to  another  point  within  the  same  state  is 
an  interstate  and  not  an  intrastate  shipment,  and  sub- 
ject exclusively  to  state  control.138 

137  Ex  parte  Agnew  (Neb.),  131  N.  W.  817;  Ex  parte  King  (Neb.), 
131  N.  W.  820. 

138  See  Oregon  E.  &  Nav.  Co.  v.  Campbell,  180  Fed.  253.  See,  also, 
The  Daniel  Ball  v.  United  States,  77  U.  S.  (10  Wall.)  557,  565,  19 
L.  ed.  999;  Sands  v.  Manistee  Eiver  Imp.  Co.,  123  U.  S.  288,  295,  8 
Sup.  Ct.  113,  31  L.  ed.  149;  Gulf  C.  &  S.  F.  E.  Co.  v.  Texas,  204  U. 
S.  403,  27  Sup.  Ct.  361,  51  L.  ed.  514;  General  Oil  Co.  v.  Crain,  209 
U.  S.  211,  28  Sup.  Ct.  475,  52  L.  ed.  754. 

As  to  when  an  interstate  shipment  ceases  to  be  interstate  commerce, 
see  General  Oil  Co.  v.  Crain,  209  U.  S.  211,  28  Sup.  Ct.  275,  52  L.  ed. 
754. 

A  rate  was  established  for  transportation  of  tobacco  from  Nash- 
ville, Tennessee,  to  Louisville,  Kentucky,  at  twelve  cents  per  hundred 
pounds,  presumably  so  fixed  on  account  of  water  competition  between 
the  same  points.  The  same  railroad  established  from  Franklin,  Ken- 
tucky, to  Louisville,  Kentucky,  a  rate  of  twenty-five  cents  per  hundred 
pounds,  Franklin,  Kentucky,  being  a  point  on  the  road  from  Nashville, 
Tennessee,  to  Louisville,  Kentucky,  but  the  Kentucky  constitution  had 
prohibited  common  carriers  to  charge  more  for  a  shorter  that  for  a 
longer  haul  over  the  same  line  under  substantially  similar  circumstances 
and  conditions.  In  an  action  brought  to  recover  the  excess  between 
twelve  cents  and  twenty-five  cents  per  hundred  pounds  on  a  shipment  of 
tobacco  from  Franklin  to  Louisville,  Kentucky,  the  supreme  court  of 
the  United  States  held  that  in  so  far  as  the  constitution  of  the  state  of 
Kentucky  sought  to  regulate,  to  some  extent,  the  interstate  commerce 
of  carriers,  which  power  of  regulation  the  constitution  of  the  United 
States  gave  to  the  federal  Congress,  it  was  invalid.  Louisville  &  N. 
E.  Co.  v.  Eubank,  184  U.  S.  27,  22  Sup.  Ct.  277,  46  L.  ed.  416. 

That  is  to  say,  the  state  has  no  power,  either  through  its  legisla- 
ture or  through  a  Commission,  to  fix  rates  for  or  to  regulate  to  any 
extent  commerce  between  the  states. 


§  80  CONSTITUTIONALITY    OF   ACT.  107 

A  shipment  from  a  point  within  the  state  to  another 
point  within  the  same  state  is  purely  state  commerce, 
and  not  subject  to  regulation  by  the  act  controlling 
intrastate  and  foreign  commerce;  but  such  a  shipment 
loses  its  character  as  state  commerce  and  becomes  in- 
trastate commerce  when  in  the  course  of  the  shipment 
the  goods  pass  over  a  portion  of  the  road  situate  with- 
out the  boundaries  of  the  state.139  A  different  view 
has  been  expressed,  but  it  is  thought  not  to  be  the 
better  doctrine.140 

§  80.  Original  Packages. — Merchandise  trans- 
ported in  original  packages  from  without  the  state 
to  the  termination  of  their  journey  within  the  state, 
on  delivery  there  to  the  consignee,  ceases  to  be  the 
subject  of  interstate  commerce,  and  any  subsequent 
shipment  thereof  from  the  point  of  delivery  to  another 
point  within  the  state  is  an  interstate  shipment,  and  is 
governed  by  the  local  freight  rates  prescribed  in  the 
manner  provided  for  by  the  Railroad  Commission 
Act.141 

139  Fravham  v.  Charleston  &  N.  C.  E.  Co.  (S.  C.),  71  S.  E.  813; 
Sternberger  v.  Cape  Fear  &  Y.  V.  R.  Co.,  29  S.  C.  510,  7  S.  E.  836,  2 
L.  R.  A.  105;  State  v.  Haleyman,  55  S.  C.  207,  31  S.  E.  362,  33  S.  E. 
366,  45  L.  R.  A.  567;  Frasier  v.  Charleston  &  W.  C.  R.  Co.,  81  S.  C. 
162,  62  S.  E.  14;  Hunter  v.  Charleston  &  W.  C.  R.  Co.,  81  S.  C.  169, 
62  S.  E.  13;  Hanley  v.  Kansas  C.  St.  R.  Co.,  187  U.  S.  617,  23  Sup.  Ct. 
214,  47  L.  ed.  333. 

no  See  supra,  authorities  in  footnote  118,  and  the  text  going  there- 
with, in  this  chapter. 

141  Oregon  R.  &  Nav.  Co.  v.  Campbell,  180  Fed.  253. 

The  principle  of  the  two  cases  was  held  not  to  be  the  same,  notwith- 
standing the  fact  that  "the  transportation  of  freight  or  of  subjects  of 
commerce,  for  the  purpose  of  exchanging  or  selling,  is  beyond  all  ques- 
tion a  constituent  of  commerce  itself."  While  an  importer  may  insist 
that  he  has  a  right  to  sell  goods  that  he  has  brought  into  the  state  from 
another  state,  while  in  the  original  packages,  it  does  not  follow  that 
a  carrier  has  the  right  to  treat  those  goods  as  interstate  goods  so  long 
as  they  remain  in  that  condition  or  unsold  by  the  importer.  The  car- 
rier depends  upon  the  contract  of  carriage,  and  interstate  traffic  as  to 
him  depends  upon  whether  he  is  called  upon  to  transport  from  one  state 


108  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  81 

§  81.  Quarantine  Regulation.— The  state  through 
its  legislature,  or  the  legislature  through  its  Eailroad 
Commission,  or  otherwise,  may  provide  quarantine  and 
other  sanitary  regulations  preventing  the  bringing  of 
infected  stock  within  the  state,  such  action  being  valid 
as  a  reasonable  exercise  of  the  police  power  of  the 
state.142 

to  another,  or  to  serve  his  patrons  by  transportation  wholly  within  the 
limits  of  a  single  state.  See  Gulf  C.  &  S.  F.  R.  Co.  v.  Texas,  24  U.  S. 
403,  27  Sup.  Ct.  360,  51  L.  ed.  540.  See  as  supporting  these  conclu- 
sions by  parity  of  reasoning,  American  Steel  &  Wire  Co.  v.  Speed,  192 
U.  S.  500,  24  Sup.  Ct.  365,  48  L.  ed.  538 ;  General  Oil  Co.  v.  Crain,  209 
U.  S.  211,  28  Sup.  Ct.  475,  52  L.  ed.  754. 

In  this  case  the  contention  of  the  railroad  company  was  that  the 
goods  included  in  the  shipment  partook  of  the  character  of  interstate 
commerce,  and  should  take  the  rate  under  the  tariff  L.  525,  notwith- 
standing the  transportation  thereof  was  wholly  within  the  state,  for  the 
reason  that  the  goods  were  shipped  into  the  state  in  original  packages, 
and  that  they  were  shipped  from  the  point  of  arrival  within  the  state 
to  another  point  within  the  state  in  the  same  original  package.  In 
other  words,  the  contention  of  the  railroad  was  that  goods  remain  in  law 
and  character  as  interstate  commerce  while  handled  in  the  original  pack- 
age in  which  they  entered  the  state;  which  contention  would  lead  to  the 
doctrine  that  "once  interstate  commerce  in  the  original  package,  always 
interstate  commerce,"  until  the  original  package  is  broken,  and  Judge 
Wolverton  said  this  idea  is  passed  on  in  cases  known  as  the  Original 
Package  Cases  by  the  supreme  court,  the  leading  one  being  Leisg  ▼. 
Hardin,  135  U.  S.  100,  10  Sup.  Ct.  681,  34  L.  ed.  128. 

See,    also,  §  73,    this    chapter,    and    the  -authorities   cited    in    footnote 

128. 

142  Patrick  v.  State,  17  Wyo.  260,  99  Pac.  588. 


§  82  TITLES   OF   ACT.  109 


CHAPTER  IV. 

TITLES  OF  ACT. 
§  82.     The   Long  Title. 
§  83.     The    Short   Title. 

§  82.  The  Long  Title.— An  act  to  provide  for  the 
organization  of  the  railroad  commission,  to  define  its 
powers  and  duties  and  the  rights,  remedies,  powers  and 
duties  of  public  utilities,  their  officers,  define  its  powers 
and  duties  and  the  rights,  remedies,  of  patrons  of  pub- 
lic utilities,  and  to  provide  penalties  for  offenses  by 
public  utilities,  their  officers,  agents  and  employees 
and  by  other  persons  and  corporations,  creating  the 
"Railroad  Commission  Fund"  and  appropriating  the 
moneys  therein  to  carry  out  the  provisions  of  this  act, 
and  repealing  the  railroad  commission  act,  approved 
February  10,  1911,  and  also  repealing  an  act  entitled 
"An  act  to  amend  the  railroad  commission  act  by 
amending  section  fifteen  thereof  relating  to  powers  and 
duties  of  the  railroad  commission  of  the  State  of  Cali- 
fornia, and  to  amend  section  thirty-seven  thereof  re- 
lating to  free  and  reduced-rate  transportation  for 
freight  and  passengers,"  approved  April  6,  1911,  and 
all  acts  and  parts  of  acts  inconsistent  with  the  provi- 
sions of  this  act.1 

i  Title  of  Act,  c.   14,   Extraordinary  Session   1911,  p.   18. 

The  title  of  this  act  is  manifestly  sufficient  for  all  the  purposes  in- 
tended to  be  accomplished  by  the  body  of  the  act.  The  supreme  court 
has  recently  passed  upon  the  title  to  an  act  somewhat  similar  in  the 
object  to  be  accomplished,  which  was  expressed  by  the  title  as  follows: 
"An  act  to  provide  for  the  organization  and  government  of  irrigation 
districts,  and  to  provide  for  the  acquisition  and  construction  thereby  of 
works  for  the  lands  embraced  within  such  districts,  and,  also,  to  provide 
for  the  distribution  of  water  for  irrigation  purposes."  In  the  body  of 
the  act,  it  was  provided  by  sections  68-72  (post,  c.  9,  §  361  et  seq.) 
for  the  institution  and  prosecution,  by  the  district,  of  proceedings  for 
determining  the  validity  of  assessments.  The  question  was  as  to  valid- 
ity of  the  statute  on  account  of  these  provisions  for  determination  of 
validity  of  assessments,  the  claim  being  that  such  proceedings  were  so 


110  CALIFORNIA   PUBLIC   UTILITIES   ACT.  §  83 

§  83.  The  Short  Title.— The  people  of  the  state  of 
California  do  enact  as  follows: 

This  act  shall  be  known  as  the  "Public  Utilities 
Act ' '  and  shall  apply  to  the  public  utilities  and  public 

foreign  to  the  title  of  the  act  as  to  render  it  void  under  the  provisions 
of  California  Constitution,  article  IV,  section  24.  This  contention  the 
supreme  court  refused  to  uphold,  saying:  "It  will  be  found  repeatedly 
declared  in  our  decisions,  that  the  purpose  of  the  constitutional  pro- 
vision is,  not  to  destroy  legislation  germane  to  the  general  object  de- 
clared in  the  title,  but  to  protect  against  the  passage  of  clauses  and 
provisions  foreign  to  the  title,  subject,  and  purpose  of  the  act — decep- 
tive legislation  adroitly  introduced  and  hidden  in  the  body  of  the  act." 
In  re  Bonds  of  So.  San  Joaquin  Irr.  Dist.  (Cal.),  119  Pac.  198,  citing 
People  v.  Linda  Vista  Irr.  Dist.,  128  Cal.  477,  61  Pac.  86;  Law  v.  San 
Francisco,  144  Cal.  388,  77  Pac.  1014;  People  v.  Sacramento  Drainage 
Dist.,  155  Cal.  373,  103  Pac.  207. 

In  the  case  of  In  re  Bonds  of  the  So.  San  Joaquin  Irr.  Dist.  (Cal.), 
119  Pac.  198,  the  supreme  court  further  says:  "The  matter  of  the  pro- 
ceeding to  test  the  legality  of  the  assessments  and  of  bond  issues  of 
the  district  under  this  broad  and  reasonable  view  comes  clearly  within ' 
the  scope  of  the  general  purposes  of  the  Irrigation  Act";  citing  Ander- 
son v.  Grand  Valley  Irr.  Dist.,  35  Colo.  525,  85  Pac.  313. 

The  provisions  of  section  24,  article  IV,  of  the  constitution  are  man- 
datory.    Ex  parte  Liddell,  93  Cal.  633,  29  Pac.  251. 

As  to  acts  held  to  be  valid  or  invalid,  on  account  of  sufficiency  or 
insufficiency  of  title,  see  Treadwell's  Annotated  Constitution,  pp.  94-97. 

The  purpose  of  section  24  is  to  protect  members  of  the  legislature 
as  well  as  the  public  against  fraud  from  deceitful  and  misleading 
titles  to  statutes.  Ex  parte  Liddell,  93  Cal.  633,  29  Pac.  251;  Abeel  v. 
Clark,  84  Cal.  226,  24  Pac.  383. 

The  title  to  an  act  is  not  required  to  embrace  an  abstract  or  a  cata- 
logue of  the  contents  of  the  act.  Abeel  v.  Clark,  84  Cal.  226,  24  Pac. 
383;  Ex  parte  Liddell,  93  Cal.  633,  29  Pac.  251;  People  v.  Superior 
Court,  100  Cal.  105,  34  Pac.  492;  People  v.  Linda  Vista  Irr.  Dist.,  128 
Cal.  477,  61  Pac.  86;  Hellman  v.  Shoulters,  114  Cal.  136,  44  Pac.  915, 
45  Pac.  1057. 

The  provisions  of  this  section  of  the  constitution  are  to  be  liberally 
construed  and  the  legislature  given  much  discretion.  Ex  parte  Liddell, 
93  Cal.  633,  29  Pac.  251;  Abeel  v.  Clark,  84  Cal.  266,  24  Pac.  383. 

A  single  act  cannot  contain  incongruous  parts,  or  accomplish  uncon- 
nected or  dissimilar  subjects  to  the  object  expressed  in  the  title.  Peo- 
ple v.  Parks,  58  Cal.  624. 

One  subject  only  is  to  be  included  in  the  title  of  an  act;  but  numer- 
ous provisions  having  one  general  object,  which  object  is  fully  indicated 
by  the  title  of  the  act,  may  be  united.     Ex  parte  Liddell,  93  Cal.  633, 


§  83  TITLES   OF   ACT.  Ill 

services  herein  described  and  to  the  commission  herein 
referred  to.2 

29  Pac.  251;  People  v.  Parks,  58  Cal.  624;  Ex  parte  Kohler,  74  Cal. 
38,  15  Pac.  436;  De  Witt  v.  San  Francisco,  2  Cal.  289. 

The  title  of  an  act  cannot  restrain  or  control  any  positive  provisions 
of  the  act,  and  is  to  be  resorted  to  as  a  means  of  ascertaining  the  inten- 
tion of  the  legislature  in  those  eases  only  in  which  the  body  of  the  act 
is  doubtful.  People  v.  Abbott,  16  Cal.  358;  Bonds  v.  Jones,  51  Cal. 
303;  Matter  of  Boston  Mining  &  M.  Co.,  51  Cal.  624;  Harris  v.  Super- 
visors, 52  Cal.  553. 

Where  the  title  of  an  act  is  of  such  a  character  as  to  mislead  the 
public  or  the  members  of  the  legislature  in  regard  to  the  subjects  em- 
braced within  it,  the  act  will  be  void.  Wood  v.  Election  Commission- 
ers, 58  Cal.  561. 

2  Chapter  14,  §  1,  Extraordinary  Session  1911,  p.  18. 


112  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  §  84.  85 


CHAPTER  V. 

DEFINITIONS. 

§  84.  "Commission." 

§  85.  "Commissioner." 

§  86.  "Corporation." 

§  87.  "Person." 

§  88.  "Transportation   of   Persons." 

§  89.  "Transportation   of  Property." 

§  90.  "Street  Railroads." 

§  91.  "Street  Railroad  Corporations." 

§  92.  "Railroad." 

§  93.  "Railroad    Corporation." 

§  94.  "Express   Corporation." 

§  95.  "Common  Carrier." 

§  96.  "Pipe-line." 

§  97.  "Pipe-line  Corporation." 

§  98.  "Gas   Plant." 

§  99.  "Gas   Corporation." 

§  100.  "Electric  Plant." 

§  101.  "Electrical  Corporation." 

5  102.  "Telephone  Line." 

§  103.  "Telephone  Corporation." 

§  104.  "Telegraph  Line." 

§  105.  "Telegraph  Corporation." 

§  106.  "Water    System." 

§  107.  "Water    Corporation." 

S  108,  "Vessel." 

§  109.  "Wharfinger." 

§  110.  "Warehouseman." 

§  111.  "Public   Utilities." 

§  84.  "Commission." — The  term  "commission," 
when  used  in  this  act,  means  the  Railroad  Commission 
of  the  state  of  California.1 

§  85.  "  Commissioner. ' ' — The  term  ' '  commissioner, ' ' 
when  used  in  this  act,  means  one  of  the  members  of 
the  Commission.2 

i  Chapter  14,  §  2  (a),  Extraordinary  Session  1911,  p.  18. 
a  Section  2   (b),  p.  18. 


§§  86,  87  DEFINITIONS.  113 

§  86.  "Corporation." — The  term  "corporation," 
when  used  in  this  act,  includes  a  corporation,  a  com- 
pany, an  association  and  a  joint-stock  association.3 

§  87.  "Person." — The  term  "person,"  when  used 
in  this  act,  includes  an  individual,  a  firm  and  a  copart- 
nership.4 

»  Section  2    (c),  p.  18. 

*  Section  2   (d),  p.  19. 

"Person"  within  the  meaning  of  the  Fourteenth  Amendment  to  the 
federal  constitution,  forbidding  the  state  to  deny  to  any  person  the 
equal  protection  of  the  law,  includes  a  railroad  corporation.  Portland 
R.  L.  &  P.  Co.  v.  Railroad  Commission   (Or.),  109  Pac.  273. 

See  10  Cent.  Dig.,  col.  2102,  §  680;  4  Dec.  Dig.,  p.  1786,  §210;  6 
Words  and  Phrases,  5322-5335;   8  Words  and  Phrases,  7752. 

Any  corporation  also  included  within  the  term  "person."  Portland, 
R.  L.  &  P.  Co.  v.  Railroad  Commission   (Or.),  109  Pac.  273. 

A  forwarding  agent  is  a  person,  within  the  meaning  of  section  2  of 
the  Interstate  Commerce  Act  of  February  2,  1887,  forbidding  prefer- 
ences. Interstate  Commerce  Commission  v.  Delaware,  L.  &  W.  R.  Co., 
220  U.  S.  235,  31  Sup.  Ct.  392,  55  L.  ed.  448.  See  Export  Shipping 
Co.  v.  Wabash  R.  Co.,  14  Int.  Com.  Rep.  437-443. 

The  provisions  of  section  2  of  the  act  to  regulate  interstate  commerce 
were  taken  substantially  from  section  90  of  the  English  Railway  Clause 
Consolidation  Act  of  1845,  known  as  the  "Equality  Clause."  Texns  & 
P.  R.  Co.  v.  Interstate  Commerce  Commission,  162  U.  S.  197,  222,  16 
Sup.  Ct.  661,  40  L.  ed.  940,  948,  5  Int.  Com.  Rep.  405;  Interstate  Com- 
merce Commission  v.  Delaware,  L.  &  W.  R.  Co.,  220  U.  S.  235,  253, 
31  Sup.  Ct.  392,  55  L.  ed.  448,  457. 

Certain,  also,  it  is  that,  at  the  time  of  the  passage  of  the  act  to  reg- 
ulate interstate  and  foreign  commerce,  section  90  of  the  English  Act 
had  been  construed  as  embracing  only  circumstances  concerning  the  car- 
riage of  the  goods,  and  not  as  embracing  the  person  of  the  sender;  or, 
in  other  words,  that  the  clause  did  not  allow  carriers  by  railroad  to  make 
a  difference  in  rates  because  of  differences  in  circumstances  arising  either 
before  the  service  of  the  carrier  began  or  after  it  was  terminated.  It 
was  therefore  the  settled  policy  in  England,  at  the  time  of  the  adop- 
tion of  the  section  in  this  country,  that  the  clause  forbade  the  charg- 
ing of  a  higher  rate  for  the  carriage  of  goods  for  one  intercepting  or 
forwarding  agent  than  for  others.  Interstate  Commerce  Commission  v. 
Delaware,  L.  &  W.  R.  Co.,  220  U.  S.  235,  253,  31  Sup.  Ct.  392,  55  L.  ed. 
448,  457.  See,  also,  Great  Western  R.  Co.  v.  Sutton  (1S69),  L.  R.  4 
H.  L.  226;  Evershed  v.  London  &  N.  W.  B.  Co.   (1S78),  L.  R.  3  App. 

6 


114  CALIFORNIA   PUBLIC   UTILITIES   ACT.  §§  88-90 

§  88.  "Transportation  of  Persons." — The  term 
"transportation  of  persons,"  when  used  in  this  act, 
includes  every  service  in  connection  with  or  incidental 
to  the  safety,  comfort  or  convenience  of  the  person 
transported  and  the  receipt,  carriage  and  delivery  of 
such  person  and  his  baggage.6 

§  89.  "Transportation  of  Property." — The  term 
"transportation  of  property,"  when  used  in  this  act, 
includes  every  service  in  connection  with  or  incidental 
to  the  transportation  of  property,  including  in  par- 
ticular its  receipt,  delivery,  elevation,  transfer,  switch- 
ing, carriage,  ventilation,  refrigeration,  icing,  dun- 
nage, storage,  and  handling,  and  the  transmission  of 
credit  by  express  corporations.6 

§  90.  "Street  Railroads. "—The  term  "street  rail- 
road," when  used  in  this  act,  includes  every  railway, 
and  each  and  every  branch  or  extension  thereof,  by 
whatsoever  power  operated,  being  mainly  upon,  along, 
above  or  below  any  street,  avenue,  road,  highway, 
bridge  or  public  place  within  any  city  and  county,  or 
city  or  town,  together  with  all  real  estate,  fixtures  and 
personal  property  of  every  kind  used  in  connection 

Cas.  1029,  5  Eng.  Rul.  Cas.  351;  Denaby  Main  Colliery  Co.  v.  Manches- 
ter, S.  &  L.  R.  Co.  (1885),  L.  R.  11  App.  Cas.  97. 

"It  cannot  be  doubted  that  this  settled  meaning  which  was  affixed  to 
the  English  equality  clause  at  the  time  of  the  adoption  of  the  act  to  reg- 
ulate commerce  applies  in  construing  section  2  of  that  act ;  certainly  to 
the  extent  that  its  interpretation  is  involved  in  the  matter  before  us." 
Interstate  Commerce  Commission  v.  Delaware,  L.  &  W.  R.  Co.,  220  U. 
S.  235,  253,  31  Sup.  Ct.  392,  55  L.  ed.  448,  457,  citing  Wight  v.  United 
States,  167  U.  S.  512,  17  Sup.  Ct.  822,  42  L.  ed.  258;  Interstate  Com- 
merce Commission  v.  Alabama  Midland  R.  Co.,  168  U.  S.  144,  18  Sup. 
Ct.  45,  42  L  ed.  414,  423. 

e  Section  2   (e),  p.  19. 

6  Section  2   (f),  p.  19. 

Transportation  of  goods  over  receiving  and  connecting  lines  on  a 
through  bill  of  lading  to  a  point  beyond  the  state  boundary  is  inter- 
state commerce  and  not  the  subject  of  state  regulation.  Missouri,  K. 
&  T.  R.  Co.  v.  New  Era  Milling  Co.,  80  Kan.  141,  101  Pac.  1011. 


§  90  DEFINITIONS.  115 

therewith,  owned,  controlled,  operated  or  managed  for 
public  use  in  the  transportation  of  persons  or  property; 
but  the  term  "street  railroad,"  when  used  in  this  act, 
shall  not  include  a  railway  constituting  or  used  as  a 
part  of  a  commercial  or  interurban  railway.7 

7  Section  2   (g),  p.  19. 

Street  railroads  are  included  in  the  phrase  "public  utilities."  See 
post,  §  111. 

"Street  railroad"  applies  only  to  such  roads,  the  rails  of  which  are 
laid  to  conform  to  the  grade  and  surface  of  the  street,  and  which  are 
otherwise  constructed  so  that  the  public  are  not  excluded  from  the 
street  as  a  public  highway,  which  run  at  a  moderate  rate  of  speed 
compared  with  commercial  railroads,  which  do  not  carry  freight  but 
only  passengers  from  one  part  of  a  thickly  populated  district  to  another 
in  a  town  or  city  and  its  suburbs.  Bloxham  v.  Consumers'  Elec.  Light  & 
St.  R.  Co.,  36  Fla.  539,  18  So.  444,  51  Am.  St.  Rep.  44.  See  post, 
§  92,  note. 

"Transportation  company,"  as  used  in  article  XII,  section  12,  of  the 
California  Constitution,  defining  powers  and  duties  of  Board  of  Railroad 
Commissioners,  does  not  include  street  railway  company  (Temple,  J., 
dissenting).  Board  of  Railroad  Com.  v.  Market  St.  R.  Co.,  132  Cal. 
677,  64  Pac.  1065. 

See  post,  c.  7,  §§  154,  176. 

Provision  of  Oregon  Act,  establishing  Railroad  Commission  (Special 
Laws  1903,  §  73,  par.  71),  authorizes  a  city  to  prescribe  rates  for 
transportation  of  passengers  or  property  within  its  limits,  and  the 
provision  (Laws  1907,  p.  70,  §  11)  that  the  act  regulating  carriers 
shall  not  apply  to  transportation  of  passengers  carried  wholly  within 
cities  by  state  and  other  railroads  does  not  prohibit  Railroad  Com- 
mission from  regulating  rates  on  traffic  originating  or  extending  be- 
yond the  boundary  of  such  a  city  (the  city  of  Portland).  Portland 
R.  L.  &  P.  Co.  v.  Railroad  Commission,  56  Or.  468,  109  Pac.  273. 

As  to  whether  statute  includes  a  street  railroad,  see  Kinsey  v.  Union 
Traction  Co.,  169  Ind.  601,  81  N.  E.  922;  Funk  v.  St.  Paul  City  R. 
Co.,  61  Minn.  435,  63  N.  W.  1099,  52  Am.  St.  Rep.  608,  29  L.  R.  A. 
208;  Riley  v.  Galveston  City  R.  Co.,  13  Tex.  Civ.  App.  247,  35  S.  W. 
826;  Sams  v.  St.  Louis  &  M.  River  R,  Co.,  174  Mo.  53,  73  S.  W.  686, 
61  L.  R.  A.  475;  Lincoln  Street  R.  Co.  v.  McClellan,  54  Neb.  672,  74 
N.  W.  1074,  69  Am.  St.  Rep.  736;  Railroad  Commrs.  v.  Market  Street 
R.  Co.,  132  Cal.  677,  64  Pac.  1065;  Front  Street  Cable  R.  Co.  v.  John- 
son (1891),  2  Wash.  112,  25  Pac.  1084,  11  L.  R.  A.  603;  Fidelity 
Loan  &  T.  Co.  v.  Douglas,  104  Iowa,  532,  73  N.  W.  1039. 

Held,  not  to  be  included  within  Interstate  Commerce  Act.  Omaha 
&  C.  B.  Street  R.  Co.  v.  International  Commerce  Commission,  179  Fed. 
243,  citing  Louisville  &  P.  R.  C.  v.  Louisville  City  R.  Co.,  63  Ky.  (2 
Duv.)   175, 178;  Funk  v.  S.  Paul  R.  Co.,  61  Minn.  435,  437,  441,  63  N.  W. 


116  CALIFORNIA   PUBLIC    UTILITIES  ACT.  §§91,92 

§  91.  "Street  Railroad  Corporations." — The  term 
"street  railroad  corporation,"  when  used  in  this  act, 
includes  every  corporation  or  person,  their  lessees, 
trustees,  receivers  or  trustees  appointed  by  any  court 
whatsoever,  owning,  controlling,  operating  or  manag- 
ing any  street  railroad  for  compensation  within  this 
state.8 

§  92.  "Railroad."— The  term  "railroad,"  when 
used  in  this  act,  includes  every  commercial,  interur- 
ban  and  other  railway  other  than  a  street  railroad,  and 
each  and  every  branch  or  extension  thereof,  by  what- 
soever power  operated,  together  with  all  tracks, 
bridges,  trestles,  rights  of  way,  subways,  tunnels,  sta- 
tions, depots,  union  depots,  ferries,  yards,  grounds, 
terminals,  terminal  facilities,  structures  and  equip- 
ment, and  all  other  real  estate,  fixtures  and  personal 
property  of  every  kind  used  in  connection  therewith, 
owned,  controlled,  operated  or  managed  for  public  use 
in  the  transportation  of  persons  or  property.9 

1099,  52  Am.  St.  Rep.  608,  29  L.  R.  A.  208;  State  v.  Duluth,  G.  &  W. 
Co.,  76  Minn.  96,  108,  78  N.  W.  1032,  57  L.  R.  A.  63;  Manhattan  &  Co. 
v.  Sioux  City  Cable  R.  Co.,  68  Fed.  82,  86;  Railroad  Commission  v. 
Market  Street  R.  Co.,  132  Cal.  677-679,  682,  683,  64  Pac.  1065;  Gyger 
v.  West  Philadelphia  R.  Co.,  136  Pa.  96,  108,  20  Atl.  399;  State  v. 
Grant  Cain,  69  Kan.  186,  189,  190,  76  Pac.  443;  Kansas  City,  O.  P. 
&  El.  R.  Co.  v.  Railroad  Commission,  73  Kan.  168,  169,  173,  84  Pac. 
755;  Sams  v.  St.  Louis  &  M.  R.  Co.,  174  Mo.  53,  64,  69,  74-77,  81, 
73  S.  W.  686,  61  L.  R.  A.  475;  Thomas  &  Houston  El.  Co.  v.  Simon, 
20  Or.  60,  75,  25  Pac.  147,  149,  23  Am.  St.  Rep.  86,  10  L.  R.  A.  251; 
Front  St.  Cable  R.  Co.  v.  Johnson,  2  Wash.  112,  25  Pac.  1084,  11  L. 
R.  A.  696;  Riley  v.  Galveston  City  R.  Co.,  13  Tex.  Civ.  App.  247,  35 
S.  W.  826. 

e  Section  2   (h),  p.  19. 

»  Section  2   (i),  p.  19. 

What  embraced  in  term  "railroad" — what  transportation  governed 
by  act   (Or.  Laws  1907,  c.  53,  p.  71,  §  11). 

"Railroad,"  as  used  in  Oregon  Act  (Laws  1907,  p.  70,  c.  53,  §  11), 
includes   all   corporations   which   operate   by   electric  power — any  inter- 


§  93  DEFINITIONS.  117 

§  93.  "Railroad  Corporation."— The  term  "rail- 
road corporation,"  when  used  in  this  act,  includes 
every  corporation  or  person,  their  lessees,  trustees,  re- 
ceivers or  trustees  appointed  by  any  court  whatsoever, 

urban  railroad.  Portland  R.  L.  &  P.  Co.  v.  Railroad  Commission,  56 
Or.  468,  105  Pac.  709. 

"Railroad,"  as  used  in  the  Wisconsin  Act,  is  therein  defined,  and  a 
provision  that  every  railroad  is  required  to  furnish  reasonable  ade- 
quate service  and  facilities  and  that  the  charge  made  for  any  services 
rendered  or  to  be  rendered  in  the  transportation  of  persons  or  property 
or  for  any  service  in  connection  therewith  or  for  the  receiving,  switch- 
ing, delivering,  storing  or  handling  of  such  property,  shall  be  reasonable 
and  just,  and  an  unjust  or  unreasonable  charge  for  such  service  is  pro- 
hibited and  declared  to  be  unlawful.  Minneapolis,  St.  P.  &  Ste.  M. 
R.  Co.  v.  Railroad  Commission,  136  Wis.  146,  116  N.  W.  915. 

"Railroad,"  as  generally  used,  applies  to  commercial  railways  engaged 
in  the  transportation  of  freight  and  passengers  for  long  distances  and, 
as  a  general  rule,  having  steam  engines  for  motive  power  and  making 
stops  at  regular  stations  for  the  receipt  and  discharge  of  freight  and 
passengers.  Bloxham  v.  Consumers'  Elec.  Light  Co.,  36  Fla.  539,  18 
So.  444,  51  Am.  St.  Rep.  44. 

"Railroad"  does  not  include  railway.  See  Gyger  v.  West  Phila.  City 
P.  Ry.  Co.,  136  Pa.  96,  20  Atl.  399.  See  Louisville  &  N.  R.  Co.  v.  Louis- 
ville St.  R.  Co.,  100  Ky.  690,  19  Ky.  Law  Rep.  11,  39  S.  W.  42;  Blox- 
ham v.  Consumers'  Elec.  Light  Co.,  36  Fla.  539,  18  So.  444,  51  Am.  St. 
Rep.  44. 

"Railroad,"  as  used  in  section  10,  article  XIII,  of  the  California  Con- 
stitution, construed  not  to  include  street  railroads.  S.  F.  &  S.  M.  El. 
R.  Co.  v.  Scott,  142  Cal.  222,  75  Pac.  575. 

"Railroad"  and  "railway"  may  undoubtedly  be  used  so  as  to  moan  a 
street  railway,  but  by  popular  usage,  when  used  without  qualifying 
words,  they  are  understood  to  refer  to  commercial  railways,  the  word 
"street"  being  almost  invariably  used  in  connection  with  railway  to  des- 
ignate a  street  railway.  Fidelity  L.  &  T.  Co.  v.  Douglas,  104  Iowa, 
532,  73  N.  W.  1039;  Funk  v.  St.  Paul  City  R.  Co.,  61  Minn.  435,  63 
N.  W.  1099,  52  Am.  St.  Rep.  608;  Sears  v.  Marshalltown  St.  R.  Co.,  65 
Iowa,  742,  23  N.  W.  150;  Front  St.  Cable  R.  Co.  v.  Johnson,  2  Wash. 
112,  25  Pac.  1084;  Manhattan  Trust  Co.  v.  Sioux  City  Cable  Co.,  68 
Fed.  82;  Mass.  L.  &  T.  Co.  v.  Hamilton,  88  Fed.  588. 

"Railroads,"  if  to  be  extended  so  as  to  include  street  railroads,  it 
is  not  because  of  the  intention  of  those  who  formed  and  adopted  the 
constitution  to  give  the  word  that  meaning,  but  because  of  the  rule  of 
law  that  where  a  provision  is  made  by  law  for  a  certain  class  of  sub- 
jects, and  thereafter  a  new  but  similar  subject  is  created,  coming  within 
the  general  description,  and  within  the  particular  purpose  and  object  of 


118  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §§94,95 

owning,  controlling,  operating  or  managing  any  rail- 
road for  compensation  within  this  state.10 

§  94.  "Express  Corporation." — The  term  "express 
corporation, ' '  when  used  in  this  act,  includes  every  cor- 
poration or  person,  their  lessees,  trustees,  receivers  or 
trustees  appointed  by  any  court  whatsoever,  engaged 
in  or  transacting  the  business  of  transporting  any 
freight,  merchandise  or  other  property  for  compensa- 
tion on  the  line  of  any  common  carrier  or  stage  or  auto 
stage  line  within  this  state.11 

§  95.  "Common  Carrier." — The  term  "common 
carrier,"  when  used  in  this  act,  includes  every  rail- 
road corporation;  street  railroad  corporation;  express 
corporation;  dispatch,  sleeping-car,  dining-car,  draw- 
ing-room car,  freight,  freight  line,  refrigerator,  oil, 
stock,  fruit,  car  loaning,  car  renting,  car  loading  and 
every  other  car  corporation  or  person,  their  lessees, 
trustees,  receivers  or  trustees  appointed  by  any  court 
whatsoever,  operating  for  compensation  within  this 

the  law,  it  is  to  be  construed  as  having  been  intended  to  be  included  in 
the  original  description.  San  Francisco  &  S.  M.  El.  Co.  v.  Scott,  142 
Cal.  222,  75  Pac.  575. 

"Facilities,"  as  applied  to  railroads,  means  everything  necessary  for 
the  convenience  of  passengers  and  patrons  and  the  safety  and  prompt 
transportation  of  passengers  and  freight.  See  Chicago  R.  I.  &  P.  R. 
Co.  v.  State,  23  Okl.  94,  99  Pac.  901;   19  Cyc.  109. 

"Public"  has  two  proper  meanings:  a  thing  may  be  said  to  be  public 
when  owned  by  the  public,  and  also  when  its  uses  are  public.  County 
of  Hennepin  v.  Brotherhood  of  Gethsemane,  27  Minn.  460,  8  N.  W.  595. 

"Public  facility"  or  "public  convenience,"  as  to,  see  32  Cyc.  748. 

io  Section  2   (j),  p.   19. 

ii  Section  2   (k),  p.  19. 

Carriage  of  express  matter  from  one  point  within  the  state  to  another 
point  within  the  state  does  not  constitute  interstate  commerce.  See 
State  v.  United  States  Express  Co.  (Minn.),  131  N.  W.  489.  See,  also, 
ante,  c.  3,  §  70. 

When  expressage  crosses  the  state  line  and  again  re-enters  the  state 
in  traveling  between  points  located  within  the  state,  the  rule  is  other- 
wise.    See  c.  3,  §  79  et  seq. 


§§  96-99  DEFINITIONS.  119 

state;  and  every  corporation  or  person,  their  lessees, 
trustees,  receivers  or  trustees  appointed  by  any  court 
whatsoever,  owning,  controlling,  operating  or  manag- 
ing any  vessel  regularly  engaged  in  the  transportation 
of  persons  or  property  for  compensation  upon  the 
waters  of  this  state  or  upon  the  high  seas,  over  regular 
routes  between  points  within  this  state.12 

§  96.  "Pipe-line."— The  term  "pipe-line,"  when 
used  in  this  act,  includes  all  real  estate,  fixtures  and 
personal  property,  owned,  controlled,  operated  or  man- 
aged in  connection  with  or  to  facilitate  the  transmis- 
sion, storage,  distribution  or  delivery  of  crude  oil  or 
other  fluid  substances  except  water  through  pipe- 
lines.13 

§  97.  "Pipe-line  Corporation."— The  term  "pipe- 
line corporation, ' '  when  used  in  this  act,  includes  every 
corporation  or  person,  their  lessees,  trustees,  receivers 
or  trustees  appointed  by  any  court  whatsoever,  owning, 
controlling,  operating  or  managing  any  pipe-line  for 
compensation  within  this  state.1* 

§  98.  "Gas  Plant."— The  term  "gas  plant,"  when 
used  in  this  act,  includes  all  real  estate,  fixtures  and 
personal  property,  owned,  controlled,  operated  or  man- 
aged in  connection  with  or  to  facilitate  the  production, 
generation,  transmission,  delivery  or  furnishing  of  gas 
(natural  or  manufactured)  for  light,  heat  or  power.15 

§  99.  "Gas  Corporation." — The  term  "gas  corpo- 
ration," when  used  in  this  act,  includes  every  cor- 
poration or  person,  their  lessees,  trustees,  receivers  or 
trustees  appointed  by  any  court  whatsoever,  owning, 

12  Section  2  (1),  p.  19. 

13  Section  2   (m),  p.  20. 

14  Section  2   (n),  p.  20. 
16  Section  2   (o),  p.  20. 


120  CALIFORNIA   PUBLIC   UTILITIES   ACT.         §§  100-102 

controlling,  operating  or  managing  any  gas  plant  for 
compensation  within  this  state,  except  where  gas  is 
made  or  produced  on  and  distributed  by  the  maker  or 
producer  through  private  property  alone  solely  for  his 
own  use  or  the  use  of  his  tenants  and  not  for  sale  to 
others.16 

§  100.  "Electric  Plant."  — The  term  "electric 
plant,"  when  used  in  this  act,  includes  all  real  estate, 
fixtures  and  personal  property  owned,  controlled,  oper- 
ated or  managed  in  connection  with  or  to  facilitate  the 
production,  generation,  transmission,  delivery  or  fur- 
nishing of  electricity  for  light,  heat  or  power,  and  all 
conduits,  ducts  or  other  devices,  materials,  apparatus 
or  property  for  containing,  holding  or  carrying  con- 
ductors used  or  to  be  used  for  the  transmission  of  elec- 
tricity for  light,  heat  or  power.17 

§  101.  ' '  Electrical  Corporation. '  '—The  term  ' '  elec- 
trical corporation,"  when  used  in  this  act,  includes 
every  corporation  or  person,  their  lessees,  trustees,  re- 
ceivers or  trustees  appointed  by  any  court  whatsoever, 
owning,  controlling,  operating  or  managing  any  elec- 
tric plant  for  compensation  within  this  state,  except 
where  electricity  is  generated  on  or  distributed  by  the 
producer  through  private  property  alone  solely  for  his 
own  use  or  the  use  of  his  tenants  and  not  for  sale  to 
others.18 

§  102.  "Telephone  Line."— The  term  "telephone 
line,"  when  used  in  this  act,  includes  all  conduits, 
ducts,  poles,  wires,  cables,  instruments  and  appliances, 
and  all  other  real  estate,  fixtures  and  personal  prop- 
erty owned,  controlled,  operated  or  managed  in  con- 

16  Section  2   (p),  p.  20. 

17  Section  2   (q),  p.  20. 
is  Section  2  (r),  p.  20. 


§§  103-106  DEFINITIONS.  121 

nection  with  or  to  facilitate  communication  by  tele- 
phone, whether  such  communication  is  had  with  or 
without  the  use  of  transmission  wires.19 

§  103.  ' ' Telephone  Corporation. '  '—The  term  ' '  tele- 
phone corporation,"  when  used  in  this  act,  includes 
every  corporation  or  person,  their  lessees,  trustees,  re- 
ceivers or  trustees  appointed  by  any  court  whatsoever, 
owning,  controlling,  operating  or  managing  any  tele- 
phone line  for  compensation  within  this  state.20 

§  104.  "Telegraph  Line."— The  term  "telegraph 
line,"  when  used  in  this  act,  includes  all  conduits, 
ducts,  poles,  wires,  cables,  instruments  and  appliances, 
and  all  other  real  estate,  fixtures  and  personal  prop- 
erty owned,  controlled,  operated  or  managed  in  con- 
nection with  or  to  facilitate  communication  by  tele- 
graph, whether  such  communication  is  had  with  or 
without  the  use  of  transmission  wires.21 

§  105.  ' '  Telegraph  Corporation. '  '—The  term  ' '  tele- 
graph corporation,"  when  used  in  this  act,  includes 
every  corporation  or  person,  their  lessees,  trustees,  re- 
ceivers or  trustees  appointed  by  any  court  whatsoever, 
owning,  controlling,  operating  or  managing  any  tele- 
graph line  for  compensation  within  this  state.22 

§  106.  "Water  System."— The  term  "water  sys- 
tem," when  used  in  this  act,  includes  all  reservoirs, 
tunnels,  shafts,  dams,  dikes,  headgates,  pipes,  flumes, 
canals,  structures  and  appliances,  and  all  other  real 
estate,  fixtures  and  personal  property,  owned,  con- 
trolled, operated  or  managed  in  connection  with  or  to 
facilitate  the  diversion,  development,  storage,  supply, 


19  Section  2  (s),  p.  21. 

20  Section  2  (t),  p.  21. 

21  Section  2  (u),  p.  21. 

22  Section  2  (v),  p.  21. 


122  CALIFORNIA   PUBLIC    UTILITIES   ACT.         §§  107-110 

distribution,  sale,  furnishing,  carriage,  apportionment 
or  measurement  of  water  for  power,  irrigation,  recla- 
mation or  manufacturing,  or  for  municipal,  domestic 
or  other  beneficial  use.23 

§  107.  "Water  Corporation."— The  term  "water 
corporation,"  when  used  in  this  act,  includes  every 
corporation  or  person,  their  lessees,  trustees,  receivers 
or  trustees  appointed  by  any  court  whatsoever,  own- 
ing, controlling,  operating  or  managing  any  water  sys- 
tem for  compensation  within  this  state.24 

§  108.  "Vessel."— The  term  "vessel,"  when  used 
in  this  act,  includes  every  species  of  water-craft,  by 
whatsoever  power  operated,  which  is  owned,  con- 
trolled, operated  or  managed  for  public  use  in  the 
transportation  of  persons  or  property.26 

§  109.  "Wharfinger."— The  term  "wharfinger," 
when  used  in  this  act,  includes  every  corporation  or 
person,  their  lessees,  trustees,  receivers  or  trustees,  ap- 
pointed by  any  court  whatsoever,  owning,  controlling, 
operating  or  managing  any  dock,  wharf  or  structure 
used  by  vessels  in  connection  with  or  to  facilitate  the 
receipt  or  discharge  of  freight  or  passengers  for  com- 
pensation within  this  state.26 

§  110.  "Warehouseman." — The  term  " warehouse- 
man," when  used  in  this  act,  includes  every  corpora- 
tion or  person,  their  lessees,  trustees,  receivers  or 
trustees  appointed  by  any  court  whatsoever  owning, 
controlling,  operating  or  managing  any  building  or 
structure  in  which  property  is  regularly  stored  for 
compensation  within  this  state,  in  connection  with  or 

23  Section  2  (w),  p.  21. 

24  Section  2  (x),  p.  21. 

25  Section  2  (y),  p.  21. 

26  Section  2  (z),  p.  21. 


§  111  DEFINITIONS.  123 

to  facilitate  the  transportation  of  property  by  a  com- 
mon carrier  or  vessel,  or  the  loading  or  unloading  of 
the  same,  other  than  a  dock,  wharf  or  structure,  owned, 
operated,  controlled  or  managed  by  a  wharfinger.27 

§  111.  "Public  Utilities."— The  term  "public  util- 
ity," when  used  in  this  act,  includes  every  common 
carrier,  pipe-line  corporation,  gas  corporation,  elec- 
trical corporation,  telephone  corporation,  telegraph 
corporation,  water  corporation,  wharfinger  and  ware- 
houseman, as  those  terms  are  defined  in  this  section, 
and  each  thereof  is  hereby  declared  to  be  a  public  util- 
ity and  to  be  subject  to  the  jurisdiction,  control  and 
regulation  of  the  commission  and  to  the  provisions  of 
this  act.28 

27  Section  2  (aa),  p.  21. 

28  Section  2   (bb),  p.  22. 

"Public  utilities,"  as  used  in  article  XII  of  the  freeholders'  charter 
of  the  city  and  county  of  San  Francisco,  entitled,  "Acquisition  of  Pub- 
lic Utilities,"  as  amended  in  1903,  does  not  include  the  words  "street 
railroads,"  yet  its  provisions,  as  amended  by  the  addition  of  section  14 
thereof,  in  1907,  are  comprehensive  enough  to  include  the  "street  rail- 
roads."    Piatt  v.  San  Francisco,  158  Cal.  74,  110  Pac.  304. 


124  CALIFORNIA  PUBLIC   UTILITIES  ACT.  §  112 

CHAPTER  VI. 

RAILROAD  COMMISSION— GENERAL  PROVISIONS. 

§  112.  Appointment    of    Commissioners. 

§  113.  Term  of   Office. 

§  114.  President   of   Commission — Election   or. 

§  115.  Vacancies — Filling  of. 

§  116.  Removal    of    Commissioners — Grounds    for. 

§  117.  Attorney  to  the  Commission — Appointment  of. 

§   118.  Duties   of   Attorney   to    Commission. 

§  119.  Secretary    to    the    Commission — Appointment    and    Term    of 

Office. 

§  120.  Duties  of  Secretary  to  Commission. 

§  121.  Assistant  Secretary — Powers  and  Duties  of. 

§  122.  Additional    Officers    and    Employees. 

§  123.  Oath  of  Office   of  Commissioners,  Appointees,  etc. 

§  124.  Qualification     and     Eligibility     of     Commissioners,     Appointees 

and  Employees. 

§  125.  General  Office  of  Commission — In  San  Francisco. 

§  126.  Open  When. 

§  127.  Session  of  Commission   at. 

§  128.  Other  Offices  of  Commission. 

§  129.  Session   of  Commission,   Public. 

§  130.  Official  Seal   of  Commission — Judicial  Notice. 

§  131.  Supplies  and  Equipment. 

§   132.  Quorum  of  Commission. 

§   133.  Vacancy   not   to   Impair  Powers. 

§   134.  Majority   to   Act — One   may   Investigate. 

§  135.  Salaries — Of    Commissioners. 

§  136.  Of  Officers  and  Employees. 

§  137.  Of  Civil   Executive  Officer. 

§  138.  Of  Other  Persons  and  Employees. 

§  139.  Expenses  of  Commission. 

§  140.  Free  Transportation  of  Commissioners  and  Employees. 

§  141.  Annual   Report    of    Commission. 

§  112.  Appointment  of  Commissioners. — The  Rail- 
road Commission  shall  consist  of  five  members,  who 
shall  be  appointed  by  the  governor  from  the  state  at 
large;  provided,  that  the  three  commissioners  in  office 
on  the  tenth  day  of  October,  nineteen  hundred  and 
eleven,  shall  serve  out  the  term  for  which  they  were 
elected,  and  that  two  additional  commissioners  shall 


§§  113-117      RAILROAD  COMMISSION — GENERAL  PROVISIONS.      125 

be  appointed  by  the  governor  to  hold  office  during  the 
same  term.1 

§  113.     Term  of  Office. — Upon  the  expiration 

of  said  term,  the  term  of  office  of  each  commissioner 
thereafter  shall  be  six  years,  excepting  that  of  the  com- 
missioners first  appointed  after  the  expiration  of  said 
term  one  shall  be  appointed  to  hold  office  until  the  first 
day  of  January,  nineteen  hundred  and  seventeen,  two 
until  the  first  day  of  January,  nineteen  hundred  and 
nineteen,  and  two  until  the  first  day  of  January,  nine- 
teen hundred  and  twenty-one.2 

§  114.    President  of  Commission — Election  of. 

The  commissioners  shall  elect  one  of  their  number 
president  of  the  Commission.8 

§  115.    Vacancies  —  Filling  of. — Whenever  a 

vacancy  in  the  office  of  commissioner  shall  occur,  the 
governor  shall  forthwith  appoint  a  qualified  person  to 
fill  the  same  for  the  unexpired  term.* 

§  116.    Removal  of  Commissioners — Grounds 

for. — The  legislature,  by  a  two-thirds  vote  of  all  mem- 
bers elected  to  each  house,  may  remove  any  one  or 
more  of  said  commissioners  from  office  for  dereliction 
of  duty  or  corruption  or  incompetency.' 

§  117.  Attorney  to  the  Commission — Appointment 
of. — The  Commission  shall  have  power  to  appoint  as 
attorney  to  the  Commission  an  attorney  at  law  of  this 
state,  who  shall  hold  office  during  the  pleasure  of  the 
Commission.6 

i  Extraordinary  Session  1911,  c.  14,  §  3  (a),  p.  22. 

2  lb. 

«  lb. 

*  Section  3   (b). 
8  lb. 

•  Section  4. 


126  CALIFORNIA   PUBLIC    UTILITIES   ACT.         §§  11&-121 

§  118.    Duties  of  Attorney  to  Commission. — 

It  shall  be  tlie  right  and  the  duty  of  the  attorney  to 
represent  and  appear  for  the  people  of  the  state  of 
California  and  the  Commission  in  all  actions  and  pro- 
ceedings involving  any  question  under  this  act  or  under 
any  order  or  act  of  the  Commission,  and,  if  directed  to 
do  so  by  the  Commission,  to  intervene,  if  possible,  in 
any  action  or  proceeding  in  which  any  such  question  is 
involved;  to  commence,  prosecute  and  expedite  the 
final  determination  of  all  actions  and  proceedings  di- 
rected or  authorized  by  the  Commission;  to  advise  the 
Commission  and  each  commissioner,  when  so  requested, 
in  regard  to  all  matters  in  connection  with  the  powers 
and  duties  of  the  Commission  and  the  members  thereof; 
and  generally  to  perform  all  duties  and  services  as  at- 
torney to  the  Commission  which  the  Commission  may 
require  of  him.7 

§  119.  Secretary  to  the  Commission — Appointment 
and  Term  of  Office. — The  Commission  shall  appoint  a 
secretary,  who  shall  hold  office  during  its  pleasure.8 

§  120.    Duties  of  Secretary  to  Commission. — 

It  shall  be  the  duty  of  the  secretary  to  keep  a  full  and 
true  record  of  all  proceedings  of  the  Commission,  to 
issue  all  necessary  process,  writs,  warrants  and  notices, 
and  to  perform  such  other  duties  as  the  Commission 
may  prescribe.9 

§  121.  Assistant  Secretary — Powers  and  Duties  of. 
The  Commission  may  appoint  an  assistant  secretary, 
who  shall  have  all  the  powers  conferred  by  law  upon 
peace  officers  to  carry  weapons,  make  arrests  and  serve 

7  lb. 

s  Section  5,  p.  22. 

•  Section  5,  p.  23. 


§§  122-124      RAILROAD  COMMISSION GENERAL  PROVISIONS.       127 

warrants  and  other  process  in  any  county  or  city  and 
county  of  this  state.10 

§  122.  Additional  Officers  and  Employees. — The 
Commission  shall  have  power  to  employ,  during  its 
pleasure,  such  officers,  experts,  engineers,  statisticians, 
accountants,  inspectors,  clerks  and  employees  as  it  may 
deem  necessary  to  carry  out  the  provisions  of  this  act 
or  to  perform  the  duties  and  exercise  the  powers  con- 
ferred by  law  upon  the  Commission.11 

§  123.  Oath  of  Office  of  Commissioners,  Appointees, 
etc. — Each  commissioner  and  each  person  appointed 
to  a  civil  executive  office  by  the  Commission  shall,  be- 
fore entering  upon  the  duties  of  his  office,  take  and  sub- 
scribe the  constitutional  oath  of  office.12 

§  124.  Qualification  and  Eligibility  of  Commis- 
sioners, Appointees  and  Employees. — Each  commis- 
sioner shall  be  a  qualified  elector  of  this  state,  and  no 
person  in  the  employ  of  or  holding  any  official  relation 
to  any  corporation  or  person,  which  said  corporation 
or  person  is  subject  in  whole  or  in  part  to  regulation 
by  the  Commission,  and  no  person  owning  stocks  or 
bonds  of  any  such  corporation  or  who  is  in  any  manner 
pecuniarily  interested  therein  shall  be  appointed  to  or 
hold  the  office  of  commissioner  or  be  appointed  or  em- 
ployed by  the  Commission;  provided,  that  if  any  such 
person  shall  become  the  owner  of  such  stocks  or  bonds 
or  become  pecuniarily  interested  in  such  corporation 
otherwise  than  voluntarily,  he  shall  within  a  reason- 
able time  devest  himself  of  such  ownership  or  interest; 

io  lb. 

ii  Section  6. 

«  Section  7. 


128  CALIFORNIA   PUBLIC   UTILITIES   ACT.         §§  125-130 

failing  to  do  so,  his  office  or  employment  shall  become 
vacant.18 

§  125.  General  Office  of  Commission — In  San  Fran- 
cisco.— The  office  of  the  Commission  shall  be  in  the  city 
and  county  of  San  Francisco.14 

§  126.    Open  When.— The  office  shall  always 

be  open,  legal  holidays  and  nonjudicial  days  excepted.15 

§  127.  Session  of  Commission  at. — The  Com- 
mission shall  hold  its  sessions  at  least  once  in  each  cal- 
endar month  in  said  city  and  county  of  San  Francisco, 
and  may  also  meet  at  such  other  times  and  in  such 
other  places  as  may  be  expedient  and  necessary  for  the 
proper  performance  of  its  duties.16 

§  128.  Other  Offices  of  Commission. — For  the  pur- 
pose of  holding  sessions  in  places  other  than  the  city 
and  county  of  San  Francisco,  the  Commission  shall 
have  power  to  rent  quarters  or  offices,  and  the  expense 
thereof  and  in  connection  therewith  shall  be  paid  in 
the  same  manner  as  other  expenses  authorized  by  this 
act.17 

§  129.  Session  of  Commission,  Public. — The  ses- 
sions of  the  Commission  shall  be  public.18 

§  130.  Official  Seal  of  Commission — Judicial  No- 
tice.— The  Commission  shall  have  a  seal,  bearing  the 
following   inscription:    "Kailroad    Commission   State 

18  ib. 

Qualifications  of  Commission  prescribed  by  statute.  In  re  Opinion  of 
Justices,  75  N.  H.  613,  72  Atl.  754;  State  v.  Gulf  R.  Co.,  55  Tex.  Civ. 
App.  108,  118  S.  W.  730,  736. 

14  Section  8  (a),  p.  23. 

ib  lb. 

i«  Ib. 

"  lb. 

is  lb. 


§§  131-134      RAILROAD   COMMISSION GENERAL   PROVISIONS.      129 

of  California."  The  seal  shall  be  affixed  to  all  writs 
and  authentications  of  copies  of  records  and  to  such 
other  instruments  as  the  Commission  shall  direct.  All 
courts  shall  take  judicial  notice  of  said  seal.19 

§  131.  Supplies  and  Equipment. — The  Commission 
is  authorized  to  procure  all  necessary  books,  maps, 
charts,  stationery,  instruments,  office  furniture,  ap- 
paratus and  appliances,  and  the  same  shall  be  paid  for 
in  the  same  manner  as  other  expenses  authorized  by 
this  act.20 

§  132.  Quorum  of  Commission. — A  majority  of  the 
commissioners  shall  constitute  a  quorum  for  the  trans- 
action of  any  business,  for  the  performance  of  any  duty 
or  for  the  exercise  of  any  power  of  the  Commission.21 

§  133.    Vacancy  not  to  Impair  Powers. — No 

vacancy  in  the  Commission  shall  impair  the  right  of 
the  remaining  commissioners  to  exercise  all  the  powers 
of  the  Commission.22 

§  134.  Majority  to  Act — One  may  Investigate. — 
The  act  of  a  majority  of  the  commissioners  when  in 
session  as  a  board  shall  be  deemed  to  be  the  act  of  the 
Commission:  but  any  investigation,  inquiry  or  hearing 
which  the  Commission  has  power  to  undertake  or  to 
hold  may  be  undertaken  or  held  by  or  before  any  com- 
missioner designated  for  the  purpose  by  the  Commis- 
sion, and  every  finding,  order  or  decision  made  by  a 
commissioner  so  designated,  pursuant  to  such  investi- 
gation, inquiry  or  hearing,  when  approved  and  con- 
firmed by  the  Commission  and  ordered  filed  in  its  office, 

is  Section  8  (b). 
20  Section  8  (c). 
2i  Section  9,  p.  24. 
22  lb. 

9 


130  CALIFORNIA  PUBLIC    UTILITIES  ACT.         §§  135-139 

shall  be  and  be  deemed  to  be  the  finding,  order  or  deci- 
sion of  the  Commission.23 

§  135.  Salaries  —  Of  Commissioners. — The  annual 
salary  of  each  commissioner  shall  be  six  thousand 
dollars.24 


§  136.  Of  Officers  and  Employees.— All  offi- 
cers, experts,  engineers,  statisticians,  accountants,  in- 
spectors, clerks  and  employees  of  the  Commission  shall 
receive  such  compensation  as  may  be  fixed  by  the  Com- 
mission.26 

§  137.  Of  Civil  Executive  Officers.— The  com- 
missioners, attorney,  secretary,  rate  expert  and  assist- 
ant secretary  shall  be  civil  executive  officers  and  their 
salaries  as  fixed  by  law  or  the  Commission  shall  be 
paid  in  the  same  manner  as  are  the  salaries  of  other 
state  officers.26 

§  138.    Of  Other  Persons  and  Employees.— 

The  salary  or  compensation  of  every  other  person  hold- 
ing office  or  employment  under  the  Commission  shall 
be  paid  monthly  from  the  funds  appropriated  for  the 
use  of  the  Commission,  after  being  approved  by  the 
Commission,  upon  claims  therefor  to  be  audited  by  the 
board  of  control.27 

§  139.  Expenses  of  Commission. — All  expenses  in- 
curred by  the  Commission  pursuant  to  the  provisions 
of  this  act,  including  the  actual  and  necessary  travel- 
ing and  other  expenses  and  disbursements  of  the  com- 
missioners, their  officers  and  employees,  incurred  while 

23    lb. 

**  Section  10  (a). 
2B  lb. 

2«    lb. 
27    lb. 


§§  140,  141      RAILROAD  COMMISSION — GENERAL  PROVISIONS.       131 

on  business  of  the  Commission,  shall  be  paid  from  the 
funds  apropriated  for  the  use  of  the  Commission,  after 
being  approved  by  the  Commission,  upon  claims  there- 
for to  be  audited  by  the  board  of  control.28 

§  140.  Free  Transportation  of  Commissioners  and 
Employees. — The  commissioners  and  the  officers  and 
employees  of  the  Commission,  shall,  when  in  the  per- 
formance of  their  official  duties,  have  the  right  to  pass, 
free  of  charge,  on  all  railroads,  cars,  vessels  and  other 
vehicles  of  every  common  carrier,  as  said  term  is  de- 
fined in  this  act,  subject  in  whole  or  in  part  to  con- 
trol or  regulation  by  the  Commission,  between  points 
within  this  state,  and  such  persons  shall  not  be  denied 
the  right  to  travel  upon  any  railroad,  car,  vessel  or 
other  vehicle  of  such  common  carrier,  whether  such 
railroad,  car,  vessel  or  other  vehicle  be  used  for  the 
transportation  of  passengers  or  freight,  and  regard- 
less of  its  class.29 

§  141.  Annual  Report  of  Commission. — The  Com- 
mission shall  make  and  submit  to  the  governor  on  or 
before  the  first  day  of  December  of  each  year  subse- 
quent to  the  year  nineteen  hundred  and  twelve,  a  re- 
port containing  a  full  and  complete  account  of  its  trans- 
actions and  proceedings  for  the  preceding  fiscal  year, 
together  with  such  other  facts,  suggestions,  and  recom- 
mendations as  it-  may  deem  of  value  to  the  people  of 
the  state.30 

28  Section  10   (b). 

29  Section  11. 
*o  Section  12. 


132  CALIFORNIA   PUBLIC    UTILITIES   ACT. 

CHAPTER  VII. 

DUTIES   OF  PUBLIC  UTILITIES. 

§  142.  Charges  to  be  Just  and  Reasonable. 

§   143.  Unjust  Charge  Unlawful. 

§  144.  Services  and  Facilities. 

§   145.  Rules  and  Regulations. 

§  146.  Tariff  Schedule — Filing   and   Public   Inspection   of. 

§  147.  Joint    Rate    Over    Through    Route. 

§  148.  Shall  State  What. 

§  149.  How  Printed — Copies  How  Kept  and  Produced. 

§  150.  Notice   in — Contents   of — Posting. 

§  151.  Form  of  to   be  Prescribed  by  Commission. 

§  152.  Who   to  File   With   Commission. 

§  153.  Limitation  of  Rates,  Tolls,  Rentals  and  Charges. 

§   154.  Power   of   Commission   to   Approve   or  Fix,   etc. 

§  155.  Power  of  Commission   to   Change   Form  of  Schedule   of 

Rates. 

§  156.  Changes   in  Schedule — Notice. 

§  157.  Notice,  How  Given. 

§   158.  Commission  may  Allow  Change  Without  the  Notice. 

§  159.  Increase  of  Rate — Notice  Directed  to  How. 

§  160.  Joint  Tariff,  etc. — Names  of  Parties  to  be  Set  Out. 

§   161.  Filing  by  One  Party,  Concurrence  by  Others. 

§   162.  Schedule   of  Rates,   etc. — Filing  and  Publishing. 

§  163.  Carriers   shall  not  Change. 

§  164.  Rebates    and    Privileges    Prohibited. 

§   165.  Free   Passes    and    Reductions    Prohibited — Exceptions. 

§   166.  Free  and   Reduced  Rates  by  Express   Companies. 

§  167.  Passes  and  Franks  by  Telegraph  and  Telephone  Com- 
pany. 

§  168.  Prior    Contract    for    Free    or    Reduced    Rate    Passenger 

Transportation    not   Affected. 

§  169.  Exceptions  as  to  United  States,  etc. — Epidemics,  Pesti- 
lences, etc. 

§  170.  Contract  for  Exchange  of  Service. 

§  171.  Greater  or  Less  Charge  shall  not  be  Demanded  or  Col- 
lected— Rebating,  etc.,  Prohibited. 

§  172.  Exceptions  may  be  Established  by  Commission. 

§  173.  Interstate  Traffic — Filing  Schedule  of. 

§  174.  Preferences   Prohibited. 

§  175.  Unreasonable  Difference  of  Rates,  etc. 

§   176.  Power  of   Commission  as   to. 

§  177.  Profiting  from  Economics,  etc. — Dividends. 

§  178.  Sliding  Scale  of  Charges— Schedule. 

§  179.  Profit  Sharing — Scale  of  Charges. 


§  142  DUTIES   OF   PUBLIC    UTILITIES.  133 

§  180.  Commission  may  Revoke  Schedule  and  Fix  Other  Charge. 

§  181.  Discrimination  Betweon  Utilities  Inter  se  Prohibited. 

§  182.  Connecting  Line,  Duty  to  Receive  and  Haul  Cars  as  Billed. 

§  183.  Duty  to   Make  Joint  Rates,  and  Power  of  Commission  is 

not  Affected. 

§  184.  Duty  of   Telegraph   and   Telephone  Lines   to   Receive   and 

Transmit. 

§  185.  False  Billing,  etc.,  by  Carrier  or  Shipper  Prohibited. 

§   186.  Less  Rates  by  Means  of  Prohibited. 

§  187.  False  Claim  for  Damages,  and  Rebates,  etc.,  by  Means  of 

Prohibited. 

§  188.  Long  and  Short  Hauls  and  Services. 

§   189.  Change  or  Modification  of  Rates,  etc.,  by  Commission. 

§   190.  Telegraph  and  Telephone  Corporations  Governed  by. 

§   191.  Change  or  Modification  of   Charges  by  Commission. 

§  192.  Switch  and  Spur  Connections. 

§  193.  Duty   to   Construct,   and  to   Receive  and   Deliver   Freight. 

§  194.  Foreign  Public  Utilities  Excluded. 

§   195.  Street   and   Interurban  Railroad — Fares   on. 

§  196.  Transfers. 

§   197.  Information  and  Details  to  be  Furnished — Tabulation,  etc. 

§   198.  Filling  Out  Blanks — Reason  for  Failure  to  be  Given. 

§  199.  Delivering   Copies    of    Maps,    Profiles,   etc. — Inventory    of 

Property. 

§  200.  To  be  Kept  Private. 

§  201.  Misdemeanor  to   Divulge. 

§  202.  Annual  Report  of  Public  Utilities. 

§  203T  To  be  Made  Under  Oath. 

§  204.  Compliance  with  Commission's  Orders. 

§  142.  Charges  to  be  Just  and  Reasonable.— All 
charges  made,  demanded  or  received  by  any  public 
utility,  or  by  any  two  or  more  public  utilities,  for  any 
product  or  commodity  furnished  or  to  be  furnished  or 
any  service  rendered  or  to  be  rendered  shall  be  just 
and  reasonable.1 

i  Extraordinary  Session  1911,  c.  14,  §  13   (a),  p.  25. 

At  common  law  common  carriers  are  obliged  to  receive  and  carry  all 
goods  offered  for  transportation  upon  receiving  a  reasonable  hire  there- 
for. Messenger  v.  Pennsylvania  R.  Co.,  36  N.  J.  L.  407;  Express  Co. 
v.  Maine  Cent.  R.  Co.,  57  Me.  188. 

In  absence  of  any  action  by  the  Railroad  Commission,  a  railroad  may 
fix  rates,  but  not  abuse  the  maximum  provided  by  the  act.  Minneapolis, 
St.  P.  &  Ste.  M.  R.  Co.  v.  Railroad  Commission,  136  Wis.  146,  116  N.  W. 
915. 

Discretionary  power  of  railroad  company  in  operating  passenger  trains 
for  the  accommodation  of  the  public  is  subject  always  to  the  condition 


134  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §§  143,  144 

§  143.  Unjust  Charge  Unlawful. — Every  un- 
just or  unreasonable  charge  made,  demanded  or  re- 
ceived for  such  product  or  commodity  or  service  is 
hereby  prohibited  and  declared  unlawful.2 

§  144.  Services  and  Facilities. — Every  public  util- 
ity shall  furnish,  provide  and  maintain  such  service, 
instrumentalities,  equipment  and  facilities  as  shall  pro- 
mote the  safety,  health,  comfort  and  convenience  of 
its  patrons,  employees  and  the  public,  and  as  shall  be 
in  all  respects  adequate,  efficient,  just  and  reasonable.3 

that  there  is  no  statutory  provision  limiting  and  restricting  such  power, 
and  that  its  exercise  is  in  opposition  to  the  terms  of  the  charter.  The 
discretion  is  further  subject  to  the  condition  that  it  must  be  exercised 
in  good  faith  and  with  a  due  regard  to  the  necessities  and  convenience 
of  the  public.  People  v.  St.  L.,  A.  &  T.  H.  R.  Co.,  176  111.  512,  52 
N.  E.  292,  35  L.  E.  A.  656;  State  ex  rel.  Taylor  v.  Missouri  Pac.  R.  Co., 
76  Kan.  467,  495,  92  Pac.  606.  See  People  ex  rel.  Hunt  v.  Chicago  & 
A.  R.  Co.,  130  HI.  175,  22  N.  E.  857;  Missouri,  O.  &  R.  Co.  v.  People, 
132  HI.  559,  24  N.  E.  643,  22  Am.  St.  Rep.  556;  Railroad  Connection 
Cases,  137  N.  C.  1,  49  S.  E.  191,  115  Am.  St.  Rep.  636. 

2  Section  13   (a),  p.  25. 

s  Section   13    (b). 

Right  of  carrier  to  separate  white  and  negro  interstate  passengers, 
in  the  absence  of  commission  legislation.  See  Chiles  v.  Chesapeake 
&  O.  R.  Co.,  218  U.  S.  71,  30  Sup.  Ct.  667,  54  L.  ed.  936;  Bowie  v.  Bir- 
mingham R.  &  El.  Co.,  125  Ala.  397,  27  So.  1016,  82  Am.  St  Rep.  247, 
50  L.  R.  A.  632 ;  Bradford  v.  St.  Louis,  I.  M.  &  S.  R.  Co.,  93  Ark.  244, 
124  S.  W.  516;  Ohio  V.  R.  Co.  v.  Lander,  104  Ky.  431,  47  S.  W.  344, 
882;  Chilton  v.  St.  Louis  &  I.  M.  R.  Co.,  114  Mo.  88,  21  S.  W.  457, 
19  L.  R.  A.  269;  Britton  v.  Atlantic  Airline  R.  Co.,  88  N.  C.  536;  West 
Chester  &  P.  R.  Co.  v.  Miles,  55  Pa.  209,  93  Am.  Dec.  744;  Smith 
v.  Chamberlain,  38  S.  C.  529,  17  S.  E.  371,  19  L.  R,  A.  710;  Chesapeake, 
O.  &  S.  W.  R.  Co.  v.  Wells,  85  Tenn.  613,  4  S.  W.  5. 

But  rules  regarding  such  separation  must  not  subject  negro  passengers 
to  unjust  discrimination  or  require  them  to  accept  unequal  accommoda- 
tions. Chicago  &  N.  W.  R.  Co.  v.  Williams,  55  111.  185,  8  Am.  Rep.  641; 
Coger  v.  North  West  U.  P.  Co.,- 37  Iowa,  154. 

Carrier's  duties  discharged  by  running  a  mixed  train,  and  an  order 
of  the  state  Commission  compelling  separate  train  service  at  a  loss 
to  the  carrier,  is  so  arbitrary  and  unreasonable  as  to  amount  to  the 
taking  of  property  without  due  process  of  law.  Missouri  Pac.  R.  Co. 
v.  Kansas,  216  U.  S.  262,  30  Sup.  Ct.  33,  54  L.  ed.  472. 

"A  state  may  furnish  such  facilities  or  direct  them  to  be  furnished 
by  persons  or  corporations  within  its  limits  without  violating  the  federal 


§§  14.5-148  DUTIES   OF   PUBLIC    UTILITIES.  135 

§  145.  Rules  and  Regulations. — All  rules  and  regu- 
lations made  by  a  public  utility  affecting  or  pertaining 
to  its  charges  or  service  to  the  public  shall  be  just  and 
reasonable.4 

§  146.  Tariff  Schedule — Filing  and  Public  Inspec- 
tion of. — Every  common  carrier  shall  file  with  the  Com- 
mission and  shall  print  and  keep  open  to  the  public 
inspection  schedules  showing  the  rates,  fares,  charges 
and  classifications  for  the  transportation  between  ter- 
mini within  this  state  of  persons  and  property  from 
each  point  upon  its  route  to  all  other  points  thereon; 
and  from  each  point  upon  its  route  to  all  points  upon 
every  other  route  leased,  operated  or  controlled  by  it; 
and  from  each  point  on  its  route  or  upon  any  route 
leased,  operated  or  controlled  by  it  to  all  points  upon 
the  route  of  any  other  common  carrier,  whenever  a 
through  route  and  a  joint  rate  shall  have  been  estab- 
lished or  ordered  between  any  two  such  points.5 

§  147.    Joint  Rate  Over  Through  Route.— If 

no  joint  rate  over  a  through  route  has  been  established, 
the  schedules  of  the  several  carriers  in  such  through 
route  shall  show  the  separately  established  rates,  fares, 
charges  and  classifications  applicable  to  the  through 
transportation.6 

§  148.    Shall     State     What.— The     schedules 

printed  as  aforesaid  shall  plainly  state  the  places  be- 
tween which  property  and  persons  will  be  carried, 
and  shall  also  contain  the  classification  of  passengers 
or  property  in  force,  and  shall  also  state  separately  all 
terminal  charges,  storage  charges,  icing  charges  and 

constitution."  Wisconsin,  M.  &  P.  E.  Co.  v.  Jacobson,  1&7  U.  S.  287, 
21  Sup.  Ct.  116,  45  L.  ed.  194. 

*  Section  13  (r),  p.  25. 

6  Section   14    (a). 

«  lb. 


136  CALIFORNIA   PUBLIC    UTILITIES   ACT.         §§  149,  150 

all  other  charges  which  the  Commission  may  require 
to  be  stated,  all  privileges  or  facilities  granted  or  al- 
lowed, and  all  rules  or  regulations  which  may  in  any 
wise  change,  affect  or  determine  any  part,  or  the  aggre- 
gate of,  such  rates,  fares,  charges  and  classifications, 
or  the  value  of  the  service  rendered  to  the  passenger, 
shipper  or  consignee.7 

§  149.    How  Printed — Copies  How  Kept  and 

Produced. — Subject  to  such  rules  and  regulations  as 
the  Commission  may  prescribe,  such  schedules  shall 
be  plainly  printed  in  large  type,  and  a  copy  thereof 
shall  be  kept  by  every  such  carrier  readily  accessible 
to  and  for  inspection  by  the  public  in  every  station 
or  office  of  such  carrier  where  passengers  or  property 
are  respectively  received  for  transportation,  when  such 
station  or  office  is  in  charge  of  an  agent,  and  in  every 
station  or  office  of  such  carrier  where  passenger  tickets 
or  tickets  for  sleeping,  parlor  car  or  other  train  accom- 
modations are  sold  or  bills  of  lading  or  waybills  or  re- 
ceipts for  property  are  issued.  Any  or  all  of  such 
schedules  kept  as  aforesaid  shall  be  immediately  pro- 
duced by  such  carrier  for  inspection  upon  the  demand 
of  any  person.8 

§  150.    Notice  in  —  Contents  of  —  Posting. — 

A  notice  printed  in  bold  type  and  stating  that  such 
schedules  are  on  file  with  the  agent  and  open  to  inspec- 
tion by  any  person,  and  that  the  agent  will  assist  any 
person  to  determine  from  such  schedules  any  rates, 
fares,  rules  or  regulations  in  force,  shall  be  kept  posted 
by  the  carrier  in  two  public  and  conspicuous  places  in 
every  such  station  or  office.9 

»  lb. 
«  lb. 
»  lb.,  p    26. 


§§  15-1-153  DUTIES   OF   PUBLIC    UTILITIES.  137 

§  151.  Form  of  to  be  Prescribed  by  Commis- 
sion.— The  form  of  every  such  schedule  shall  be  pre- 
scribed by  the  Commission  and  shall  conform  in  the 
case  of  common  carriers  subject  to  the  act  of  Con;.' 
entitled  "An  act  to  regulate  commerce,"  approved 
February  fourth,  eighteen  hundred  and  eighty-seven, 
and  the  acts  amendatory  thereof  and  supplementary 
thereto,  as  nearly  as  may  be  to  the  form  of  schedules 
prescribed  by  the  Interstate  Commerce  Commission 
under  said  act.10 

§  152.  Who  to  File  With  Commission. — Un- 
der such  rules  and  regulations  as  the  Commission  may 
prescribe,  every  public  utility  other  than  a  common 
carrier  shall  file  with  the  Commission  within  such  time 
and  in  such  form  as  the  Commission  may  designate, 
and  shall  print  and  keep  open  to  public  inspection 
schedules  showing  all  rates,  tolls,  rentals,  charges  and 
classifications  collected  or  enforced,  or  to  be  collected 
or  enforced,  together  with  all  rules,  regulations,  con- 
tracts, privileges  and  facilities  which  in  any  manner 
affect  or  relate  to  rates,  tolls,  rentals,  classifications, 
or  service.11 

§  153.    Limitation  of  Rates,  Tolls,  Rentals  and 

Charges. — The  rates,  tolls,  rentals  and  charges  shown 
on  such  schedules  when  filed  by  a  public  utility  as  to 
which  the  Commission  by  this  act  acquires  the  power 
to  fix  any  rates,  tolls,  rentals  or  charges,  shall  not, 
within  any  portion  of  the  territory  as  to  which  the 
Commission  acquires  as  to  such  public  utility  such 
power,  exceed  the  rates,  tolls,  rentals  or  charges  in 
effect  on  the  tenth  day  of  October,  nineteen  hundred 
and  eleven;  the  rates,  tolls,  rentals  and  charges  shown 
on  such  schedules,  when  filed  by  any  public  utility  as 

10  lb. 

ii  Section   14    (b). 


138  CALIFORNIA   PUBLIC   UTILITIES   ACT.         §§  154-156 

to  any  territory  as  to  which  the  Commission  does  not 
by  this  act  acquire  as  to  such  public  utility  such  power, 
shall  not  exceed  the  rates,  tolls,  rentals  and  charges  in 
effect  at  the  time  the  Commission  acquires  as  to  such 
territory  and  as  to  such  public  utility  the  power  to  fix 
rates,  tolls,  rentals  or  charges.12 

§  154.    Power  of  Commission  to  Approve  or 

Fix,  etc. — Nothing  in  this  section  contained  shall  pre- 
vent the  Commission  from  approving  or  fixing  rates, 
tolls,  rentals  or  charges,  from  time  to  time,  in  excess 
of  or  less  than  those  shown  by  said  schedules.13 

§  155.    Power  of  Commission  to  Change  Form 

of  Schedule  of  Sates. — The  Commission  shall  have 
power,  from  time  to  time,  in  its  discretion,  to  deter- 
mine and  prescribe  by  order  such  changes  in  the  form 
of  the  schedules  referred  to  in  this  section  as  it  may 
find  expedient,  and  to  modify  the  requirements  of  any 
of  its  orders,  rules  or  regulations  in  respect  to  any 
matter  in  this  section  referred  to.14 

§  156.  Changes  in  Schedule — Notice. — Unless  the 
Commission  otherwise  orders,  no  change  shall  be  made 
by  any  public  utility  in  any  rate,  fare,  toll,  rental, 
charge  or  classification,  or  in  any  rule,  regulation  or 
contract  relating  to  or  affecting  any  rate,  fare,  toll, 
rental,  charge,  classification  or  service,  or  in  any  privi- 
lege or  facility,  except  after  thirty  days '  notice  to  the 
Commission  and  to  the  public  as  herein  provided.15 

12  lb. 

13  lb. 

Commission  has  no  power  over  state  railway  corporations  within  a 
municipality.  Board  of  Eailroad  Commrs.  v.  Market  Street  R.  Co.,  132 
Cal.  677,  64  Pac.  1065. 

See,  also,  chapter  5,  authorities  cited  in  footnote  7. 

"  Section  14  (c),  p.  26. 

is  Section  15. 


§§  157-161  DUTIES   OP   PUBLIC    UTILITIES.  139 

§  157.     Notice,  How  Given. — Such  notice  shall 

be  given  by  filing  with  the  Commission  and  keeping 
open  for  public  inspection  new  schedules  stating 
plainly  the  change  or  changes  to  be  made  in  the  sched- 
ule or  schedules  then  in  force,  and  the  time  when  the 
change  or  changes  will  go  into  effect.18 

§  158.  Commission  may  Allow  Change  With- 
out the  Notice. — The  Commission,  for  good  cause 
shown,  may  allow  changes  without  requiring  the  thirty 
days'  notice  herein  provided  for,  by  an  order  specify- 
ing the  changes  so  to  be  made  and  the  time  when  they 
shall  take  effect,  and  the  manner  in  which  they  shall 
be  filed  and  published.17 

§  159.    Increase  of  Rate — Notice  Directed  to 

How. — When  any  change  is  proposed  in  any  rate,  fare, 
toll,  rental,  charge  or  classification,  or  in  any  form  of 
contract  or  agreement  or  in  any  rule,  regulation  or  con- 
tract relating  to  or  affecting  any  rate,  fare,  toll,  rental, 
charge,  classification  or  service,  or  in  any  privilege  or 
facility,  attention  shall  be  directed  to  such  change  on 
the  schedule  filed  with  the  Commission,  by  some  char- 
acter to  be  designated  by  the  Commission,  immediately 
preceding  or  following  the  item.18 

**§  160.  Joint  Tariff,  etc.— Names  of  Parties  to  be 
Set  Out. — The  names  of  the  several  public  utilities 
which  are  parties  to  any  joint  tariff,  rate,  fare,  toll, 
contract,  classification  or  charge  shall  be  specified  in 
the  schedule  or  schedules  showing  the  same.19 

§  161.     Filing  by  One  Party,  Concurrence  by 

Others. — Unless  otherwise  ordered  by  the  Commission, 

i«     lb.,  p.  27. 

17  rb. 

18  lb. 

is  Section   16,  p.   27. 


140  CALIFORNIA   PUBLIC    UTILITIES   ACT.         §§  162-16-4 

a  schedule  showing  such  joint  tariff,  rate,  fare,  toll, 
contract,  classification  or  charge  need  be  filed  with 
the  Commission  by  only  one  of  the  parties  to  it;  pro- 
vided, that  there  is  also  filed  with  the  Commission  in 
such  form  as  the  Commission  may  require  a  concur- 
rence in  such  joint  tariff,  rate,  fare,  toll,  contract, 
classification  or  charge  by  each  of  the  other  parties 
thereto.20 

§  162.  Schedule  of  Rates,  etc.— Filing  and  Publish- 
ing.— No  common  carrier  subject  to  the  provisions  of 
this  act  shall  engage  or  participate  in  the  transporta- 
tion of  persons  or  property,  between  points  within  this 
state,  until  its  schedules  of  rates,  fares,  charges  and 
classifications  shall  have  been  filed  and  published  in 
accordance  with  the  provisions  of  this  act.21 

§  163.  Carriers  Shall  not  Change. — No  com- 
mon carrier  shall  charge,  demand,  collect  or  receive  a 
greater  or  less  or  different  compensation  for  the  trans- 
portation of  persons  or  property,  or  for  any  service 
in  connection  therewith,  than  the  rates,  fares  and 
charges  applicable  to  such  transportation  as  specified 
in  its  schedules  filed  and  in  effect  at  the  time.22 

§  164.    Rebates  and  Privileges  Prohibited.— 

Nor  shall  any  such  carrier  refund  or  remit  in  any  man^ 
ner  or  by  any  device  any  portion  of  the  rates,  fares  or 
charges  so  specified,  except  upon  order  of  the  Com- 
mission as  hereinafter  provided,  nor  extend  to  any 
corporation  or  person  any  privilege  or  facility  in  the 
transportation  of  passengers  or  property  except  such 
as  are  regularly  and  uniformly  extended  to  all  corpo- 
rations and  persons.2 


23 


20  lb. 

21  Section  17    (a)    1,  p.  27. 

22  Section  17  (a)  2,  p.  27. 

23  lb. 


§  165  DUTIES   OF   PUBLIC    UTILITIES.  141 

§  165.  Free  Passes  and  Reductions  Prohib- 
ited— Exceptions. — Xo  common  carrier  subject  to  the 
provisions  of  this  act  shall,  directly  or  indirectly,  issue, 
give  or  tender  any  free  ticket,  free  pass  or  free  or  re- 
duced rate  transportation  for  passengers  between 
points  within  this  state,  except  to  its  officers,  agents, 
employees,  attorneys,  physicians  and  surgeons,  and 
members  of  their  families;  to  ministers  of  religion, 
traveling  secretaries  of  railroad  men's  religious  asso- 
ciations, or  executive  officers,  organizers  or  agents  of 
railroad  employees'  mutual  benefit  associations  giving 
the  greater  portion  of  their  time  to  the  work  of  any 
such  association;  inmates  of  hospitals  or  charitable  or 
eleemosynary  institutions,  and  persons  exclusively  en- 
gaged in  charitable  or  eleemosynary  work,  and  persons 
and  property  engaged  or  employed  in  educational  work 
or  scientific  research  when  permitted  by  the  Commis- 
sion; to  the  executive  officers  of  mercantile  or  pro- 
motion boards  or  bodies  within  this  state  when  travel- 
ing in  the  performance  of  duties  affecting  the  advance- 
ment of  the  business  of  such  boards  or  bodies,  or  the 
development  of  trade  or  industry  within  or  without 
this  state,  when  authorized  by  the  Commission;  to 
hotel  employees  of  season  resort  hotels,  when  author- 
ized by  the  Commission;  to  indigent,  destitute  and 
homeless  persons  and  to  such  persons  when  trans- 
ported by  charitable  societies  or  hospitals,  and  the 
necessary  agents  employed  in  such  transportation;  to 
inmates  of  the  national  homes  or  state  homes  for  dis- 
abled volunteer  soldiers  and  of  soldiers'  and  sailors' 
homes,  including  those  about  to  enter  and  those  re- 
turning home  after  discharge;  to  necessary  caretakers, 
going  and  returning,  of  livestock,  poultry,  milk,  fruit 
and  other  freight,  under  uniform  and  nondiscrimin- 
atory regulations;  to  employees  of  sleeping-car  cor- 
porations, express  corporations  and  telegraph  and 
telephone  corporations;  to  railway  mail  service  em- 


142  CALIFORNIA   PUBLIC   UTILITIES   ACT.  §  165 

ployees,  United  States  internal  revenue  officers,  post- 
office  inspectors,  customs  officers  and  inspectors  and 
immigration  inspectors  when  traveling  in  the  course 
of  their  official  duty;  to  newsboys  on  trains,  baggage 
agents,  witnesses  attending  any  legal  investigation  in 
which  the  carrier  is  interested,  persons  injured  in  acci- 
dents or  wrecks  and  physicians  and  nurses  attending 
such  persons;  provided,  that  the  term  "employees," 
as  used  in  this  section,  shall  include  furloughed,  pen- 
sioned   and    superannuated    employees,  persons    who 
have  become  disabled  or  infirm  in  the  service  of  any 
such  carrier,  ex-employees  traveling  for  the  purpose 
of  entering  the  service  of  any  such  carrier,  and  the 
remains  of  persons  dying  while  in  the  employment  of 
any  such  carrier;  and  the  term  "families,"  as  used  in 
this  section,  shall  include  the  families  of  those  per- 
sons heretofore  named  in  this  proviso,  the  families  of 
persons  killed,  and  the  widows  during  widowhood  and 
minor  children  during  minority  of  persons  who  died 
while  in  the  service  of  any  such  carrier;  and  provided, 
further,  that  no  free  ticket,  free  pass  or  free  or  reduced 
rate  transportation  shall  be  issued,  given  or  tendered 
to  any  officer,  agent  or  employee  of  a  common  carrier, 
who  is  at  the  same    time  a  shipper    or    receiver  of 
freight,  or  an  officer,  agent  or  employee  of  a  shipper 
or  receiver  of  freight,  unless  such  officer,  agent  or 
employee  devotes  substantially  his  entire  time  to  the 
service  of  such  carrier;  and  provided,  further,  that  the 
members  of    the  Eailroad    Commission,  their  officers 
and  employees,  shall  be  entitled,  when  in  the  perform- 
ance of  their  official  duties,  to  free  transportation  over 
the  lines  of  all  common  carriers  within  this  state;  and 
provided,  further,  that  passenger  transportation  may 
issue  to  the  proprietors  and  employees  of  newspapers 
and  magazines  and  the  members  of  their  immediate 
families,  in  exchange    for  advertising    space  in  such 
newspapers  or  magazines  at  full  rates,  subject  how- 


§§  166-168  DUTIES   OF   PUBLIC   UTILITIES.  14-3 

ever  to  such  reasonable  restrictions  as  the  Commission 
may  impose.24 

§  166.    Free  and  Reduced   Rates  by  Express 

Companies. — Nothing  in  this  act  contained  shall  be 
construed  to  prohibit  the  issue  by  express  corporations 
of  free  or  reduced  rate  transportation  for  express 
matter  to  their  officers,  agents,  employees,  attorn 
physicians  and  surgeons,  and  members  of  their  fam- 
ilies, or  the  interchange  of  free  or  reduced  rate  trans- 
portation for  passengers  or  express  matter  between 
common  carriers,  their  officers,  agents,  employees,  at- 
torneys, physicians  and  surgeons,  and  members  of 
their  families;  provided,  that  such  express  matter  be 
for  the  personal  use  of  the  person  to  or  for.  whom  such 
free  or  reduced  rate  transportation  is  granted,  or  of 
his  family.25 

§  167.    Passes  and  Franks  by  Telegraph  and 

Telephone  Company. — Nor  to  prohibit  the  issue  of 
passes  or  franks  by  telegraph  or  telephone  corpora- 
tions to  their  officers,  agents,  employees,  attorneys, 
physicians  and  surgeons,  and  members  of  their  fam- 
ilies, or  the  exchange  of  passes  or  franks  between  such 
telegraph  and  telephone  corporations  or  between  such 
corporations  and  such  common  carriers,  for  their 
officers,  agents,  employees,  attorneys,  physicians  and 
surgeons,  and  members  of  their  families.26 

§  168.    Prior  Contract  for  Free  or  Reduced 

Rate  Passenger  Transportation  not  Affected. — Nor  to 
prevent  the  carrying  out  of  contracts  for  free  or  re- 
duced rate  passenger  transportation  heretofore  made, 
founded  upon  adequate  consideration  and  lawful  when 
made;  nor  to  prevent  a  common  carrier  from  trans- 

24  Section  17    (a)    3,  p.  29. 

25  lb.,   p.   29. 

26  lb. 


144  CALIFORNIA   PUBLIC   UTILITIES   ACT.  §§  169-171 

porting,  storing  or  handling,  free  or  at  reduced  rates, 
the  household  goods  and  personal  effects  of  its  em- 
ployees, of  persons  entering  or  leaving  its  service,  and 
of  persons  killed  or  dying  while  in  its  service.27 

§  169.    Exceptions  as  to  United  States,  etc. — 

Epidemics,  Pestilences,  etc. — Every  common  carrier 
subject  to  the  provisions  of  this  act  may  transport, 
free  or  at  reduced  rates,  persons  or  property  for  the 
United  States,  state,  county  or  municipal  governments, 
or  for  charitable  purposes,  or  to  provide  relief  in  cases 
of  general  epidemic,  pestilence  or  other  calamitous 
visitation,  and  property  to  or  from  fairs  or  expositions 
for  exhibit  thereat;  also  contractors  and  their  em- 
ployees, material  or  supplies  for  use  or  engaged  in 
carrying  out  their  contracts  with  said  carriers,  for 
construction,  operation  or  maintenance  work  or  work 
incidental  thereto  on  the  line  of  the  issuing  carrier, 
to  the  extent  only  that  such  free  or  reduced  rate  trans- 
portation is  provided  for  in  the  specifications  upon 
which  the  contract  is  based  and  in  the  contract  itself.28 

§  170.    Contract  for  Exchange  of   Service.— 

Common  carriers  may  also  enter  into  contracts  with 
telegraph  and  telephone  corporations  for  an  exchange 
of  service.29 

§  171.    Greater  or  Less  Charge  Shall  not  be 

Demanded  or  Collected— Rebating,  etc.,  Prohibited  — 
Except  as  in  this  section  otherwise  provided,  no  public 
utility  shall  charge,  demand,  collect  or  receive  a 
greater  or  less  or  different  compensation  for  any 
product  or  commodity  furnished  or  to  be  furnished, 
or  for  any  service  rendered  or  to  be  rendered,  than 
the  rates,  tolls,  rentals  and  charges  applicable  to  such 

27  ib. 

28  Section  17   (a)  4,  p.  29. 

29  Ib. 


§§  172,  173  .  DUTIES   OF   PUBLIC    UTILITIES.  145 

product  or  commodity  or  service  as  specified  in  its 
schedules  on  file  and  in  effect  at  the  time,  nor  shall  any 
such  public  utility  refund  or  remit,  directly  or  indi- 
rectly, in  any  manner  or  by  any  device,  any  portion 
of  the  rates,  tolls,  rentals  and  charges  so  specified,  nor 
extend  to  any  corporation  or  person  any  form  of  con- 
tract or  agreement  or  any  rule  or  regulation  or  any 
facility  or  privilege  except  such  as  are  regularly  and 
uniformly  extended  to  all  corporations  and  persons.8' 

§  172.    Exceptions   may   be    Established   by 

Commission. — Provided,  that  the  Commission  may  by 
rule  or  order  establish  such  exceptions  from  the  oper- 
ation of  this  prohibition  as  it  may  consider  just  and 
reasonable  as  to  each  public  utility.81 

§  173.  Interstate  Traffic  — Filing  Schedule  of.— 
Every  common  carrier  and  every  telegraph  and  tele- 
phone corporation  shall  print  and  file  or  cause  to  be 
filed  with  the  Commission  schedules  showing  all  the 
rates,  fares,  tolls,  rentals,  charges  and  classifications 
for  the  transportation  of  persons  or  property  or  the 
transmission  of  messages  or  conversations  between  all 
points  within  this  state  and  all  points  without  the  state 
upon  its  route,  and  between  all  points  within  this  state 
and  all  points  without  the  state  upon  every  route 
leased,  operated  or  controlled  by  it,  and  between  all 
points  on  its  route  or  upon  any  route,  leased,  oper- 
ated or  controlled  by  it  within  this  state  and  all  points 
without  the  state  upon  the  route  of  any  other  common 
carrier  or  telegraph  or  telephone  corporation,  when- 
ever a  through  route  and  joint  rate  shall  have  been 
established  between  any  two  such  points.32 

30  Section   17    (b),  p.  29. 

si  lb.,   p.   30. 

82  Section   18,  p.  30. 

10 


146  CALIFORNIA   PUBLIC    UTILITIES   ACT.    .    §§  174—178 

§  174.  Preferences  Prohibited. — No  public  utility 
shall,  as  to  rates,  charges,  service,  facilities  or  in  any 
other  respect,  make  or  grant  any  preference  or  advan- 
tage to  any  corporation  or  person  or  subject  any  cor- 
poration or  person  to  any  prejudice  or  disadvantage.83 

§  175.    Unreasonable  Difference  of  Rates,  etc. 

No  public  utility  shall  establish  or  maintain  any  un- 
reasonable difference  as  to  rates,  charges,  service, 
facilities  or  in  any  other  respect,  either  as  between 
localities  or  as  between  classes  of  service.34 

§  176.  Power  of  Commission  as  to. — The  Com- 
mission shall  have  the  power  to  determine  any  ques- 
tion of  fact  arising  under  this  section.35 

§  177.    Profiting  from  Economics,  etc.— Dividends. 

Nothing  in  this  act  shall  be  taken  to  prohibit  any 
public  utility  from  itself  profiting,  to  the  extent  per- 
mitted by  the  Commission,  from  any  economics,  effi- 
ciencies or  improvements  which  it  may  make,  and  from 
distributing  by  way  of  dividends,  or  otherwise  dis- 
posing of,  the  profits  to  which  it  may  be  so  entitled, 
and  the  Commission  is  authorized  to  make  or  permit 
such  arrangement  or  arrangements  with  any  public 
utility  as  it  may  deem  wise  for  the  purpose  of  encour- 
aging economics,  efficiencies  or  improvements  and 
securing  to  the  public  utility  making  the  same  such 
portion,  if  any,  of  the  profits  thereof  as  the  Commis- 
sion may  determine.38 

§  178.  Sliding  Scale  of  Charges — Schedule. — Noth- 
ing in  this  act  shall  be  taken  to  prohibit  a  corporation 

33  Section  19,  p.  30. 

34  lb. 

35  lb. 

See  footnote,  supra,  §  154. 

36  Section  20,  p.  30. 


§§  179-181  DUTIES   OF   PUBLIC    UTILITIES.  147 

or  person  engaged  in  the  production,  generation,  trans- 
mission or  furnishing  of  heat,  light,  water  or  power, 
or  telegraph  or  telephone  service,  from  establishing  a 
sliding  scale  of  charges;  provided,  that  a  schedule 
showing  such  scale  of  charges  shall  first  have  been  filed 
with  the  Commission  and  such  schedule  and  each  rate 
set  out  therein  approved  by  it.37 

§  179.  Profit  Sharing — Scale  of  Charges. — Nothing 
in  this  act  shall  be  taken  to  prohibit  any  such  cor- 
poration or  person  from  entering  into  an  arrangement 
for  a  fixed  period  for  the  automatic  adjustment  of 
charges  for  heat,  light,  water  or  power,  or  telegraph 
or  telephone  service,  in  relation  to  the  dividends  to 
be  paid  to  stockholders  of  such  corporation,  or  the 
profit  to  be  realized  by  such  person;  provided,  that  a 
schedule  showing  the  scale  of  charges  under  such  ar- 
rangement shall  first  have  been  filed  with  the  Com- 
mission and  such  schedule  and  each  rate  set  out  therein 
approved  by  it.88 

§  180.  Commission  may  Revoke  Schedule  and  Fix 
Other  Charge. — Nothing  in  this  section  shall  prevent 
the  Commission  from  revoking  its  approval  at  any  time 
and  fixing  other  rates  and  charges  for  the  product  or 
commodity  or  service,  as  authorized  by  this  act.39 

§  181.  Discrimination  Between  Utilities  Inter  Se 
Prohibited. — Every  common  carrier  shall  afford  all 
reasonable,  proper  and  equal  facilities  for  the  prompt 
and  efficient  interchange  and  transfer  of  passengers, 
tonnage  and  cars,  loaded  or  empty,  between  the  lines 
owned,  operated,  controlled  or  leased  by  it  and  the 
lines  of  every  other  common  carrier,  and  shall  make 
such  interchange  and  transfer  promptly  without  dis- 

87  Section   21,  p.   30. 
ss  lb.,  p.  31. 
as  lb. 


148  CALIFORNIA   PUBLIC    UTILITIES   ACT.         §§  182-184 

crimination  between  shippers,  passengers  or  carriers 
either  as  to  compensation  charged,  service  rendered  or 
facilities  afforded.*0 

§  182.    Connecting  Line,  Duty  to  Receive  and 

Haul  Cars  as  Billed. — Every  railroad  corporation  shall 
receive  from  every  other  railroad  corporation,  at  any 
point  of  connection,  freight-cars  of  proper  standard 
and  in  proper  condition,  and  shall  haul  the  same  either 
to  destination,  if  the  destination  be  upon  a  line  owned, 
operated  or  controlled  by  such  railroad  corporation,  or 
to  point  of  transfer  according  to  route  billed,  if  the 
destination  be  upon  the  line  of  some  other  railroad 
corporation.41 

§  183.    Duty  to  Make  Joint  Rates,  and  Power 

of  Commission  is  not  Affected. — Nothing  in  this  section 
contained  shall  be  construed  as  in  anywise  limiting 
or  modifying  the  duty  of  a  common  carrier  to  establish 
joint  rates,  fares  and  charges  for  the  transportation 
of  passengers  and  property  over  the  lines  owned,  oper- 
ated, controlled  or  leased  by  it  and  the  lines  of  other 
common  carriers,  nor  as  in  any  manner  limiting  or 
modifying  the  power  of  the  Commission  to  require  the 
establishment  of  such  joint  rates,  fares  and  charges.42 

§  184.    Duty    of    Telegraph    and    Telephone 

Lines  to  Receive  and  Transmit. — Every  telephone  cor- 
poration and  telegraph  corporation  operating  in  this 
state  shall  receive,  transmit  and  deliver,  without  dis- 
crimination or  delay,  the  conversations  and  messages 
of  every  other  telephone  or  telegraph  corporation  with 
whose  line  a  physical  connection  may  have  been 
made.43 

40  Section   22   (a),   p.  31. 

41  lb. 

42  lb. 

43  Section  22  (b),  p.  31. 


§§  185-187  DUTIES   OP   PUBLIC    UTILITIES.  119 

§  185.  False  Billing,  etc.,  by  Carrier  or  Shipper 
Prohibited. — No  common  carrier,  or  any  officer  or 
agent  thereof,  or  any  person  acting  for  or  employed 
by  it,  shall,  by  means  of  known  false  billing,  classifica- 
tion, weight,  weighing,  or  report  of  weight,  or  by  any 
other  device  or  means  assist,  suffer  or  permit  any 
corporation  or  person  to  obtain  transportation  for 
any  person  or  property  between  points  within  this 
state  at  less  than  the  rates  and  fares  then  established 
and  in  force  as  shown  by  the  schedules  filed  and  in 
effect  at  the  time.44 

§  186.    Less  Rates  by  Means  of  Prohibited. — 

No  person,  corporation,  or  any  officer,  agent  or  em- 
ployee of  a  corporation  shall,  by  means  of  false  bill- 
ing, false  or  incorrect  classification,  false  weight  or 
weighing,  false  representation  as  to  contents  or  sub- 
stance of  a  package,  or  false  report  or  statement  of 
weight,  or  by  any  other  device  or  means,  whether  with 
or  without  the  consent  or  connivance  of  a  common 
carrier  or  any  of  its  officers,  agents  or  employees,  seek 
to  obtain  or  obtain  such  transportation  for  such  prop- 
erty at  less  than  the  rates  then  established  and  in  force 
therefor.45 

§  187.    False  Claim  for  Damages,  and  Rebates, 

etc.,  by  Means  of  Prohibited. — No  person  or  corpora- 
tion, or  any  officer,  agent  or  employee  of  a  corpora- 
tion, shall  knowingly,  directly  or  indirectly,  by  any 
false  statement  or  representation  as  to  cost  or  value, 
or  the  nature  or  extent  of  an  injury,  or  by  tjie  use  of 
any  false  billing,  bill  of  lading,  receipt,  voucher,  roll, 
account,  claim,  certificate,  affidavit  or  deposition,  or 
upon  any  false,  fictitious  or  fraudulent  statement  or 
entry,  obtain  or  attempt  to  obtain  any  allowance,  re- 

**  Section  23  (a),  p.  31. 

«5    lb. 


150  CALIFORNIA   PUBLIC    UTILITIES   ACT.         §  §  188,  189 

bate  or  payment  for  damage,  in  connection  with  or 
growing  out  of  the  transportation  of  persons  or  prop- 
erty, or  an  agreement  to  transport  such  persons  or 
property,  whether  with  or  without  the  consent  or  con- 
nivance of  a  common  carrier  or  any  of  its  officers, 
agents  or  employees ;  nor  shall  any  common  carrier,  or 
any  officer,  agent  or  employee  thereof,  knowingly  pay 
or  offer  to  pay  any  such  allowance,  rebate  or  claim  for 
damage.46 

§  188.  Long  and  Short  Hauls  and  Services. — No 
common  carrier  subject  to  the  provisions  of  this  act 
shall  charge  or  receive  any  greater  compensation  in 
the  aggregate  for  the  transportation  of  persons  or  of 
a  like  kind  of  property  for  a  shorter  than  for  a  longer 
distance  over  the  same  line  or  route  in  the  same  direc- 
tion, within  this  state,  the  shorter  being  included 
within  the  longer  distance,  or  charge  any  greater  com- 
pensation as  a  through  rate  than  the  aggregate  of  the 
intermediate  rates;  but  this  shall  not  be  construed  as 
authorizing  any  such  common  carrier  to  charge  or  re- 
ceive as  great  a  compensation  for  a  shorter  as  for  a 
longer  distance  or  haul.47 

§  189.    Change  or  Modification  of  Rates,  etc., 

by  Commission. — Upon  application  to  the  Commission, 
such  common  carrier  may,  in  special  cases,  after  in- 
vestigation, be  authorized  by  the  Commission  to  charge 
less  for  a  longer  than  for  a  shorter  distance  for  the 
transportation  of  persons  or  property,  and  the  Com- 
mission may  from  time  to  time  prescribe  the  extent  to 
which  such  carrier  may  be  relieved  from  the  operation 
and  requirements  of  this  section.48 

«  Section    23    (b),    p.    32. 

47  Section  24   (a),  p.  32. 

48  lb. 


§§  190-192  DUTIES   OF   PUBLIC   UTILITIES.  151 

§  190.    Telegraph  and  Telephone  Corporations 

Governed  by. — No  telephone  or  telegraph  corporation 
subject  to  the  provisions  of  this  act  shall  charge  or 
receive  any  greater  compensation  in  the  aggregate 
for  the  transmission  of  any  long  distance  message  or 
conversation  for  a  shorter  than  for  a  longer  distance 
over  the  same  line  or  route  in  the  same  direction, 
within  this  state,  the  shorter  being  included  within  the 
longer  distance,  or  charge  any  greater  compensation 
for  a  through  service  than  the  aggregate  of  the  in- 
termediate rates  or  tolls  subject  to  the  provisions  of 
this  act ;  but  this  shall  not  be  construed  as  authorizing 
any  such  telephone  or  telegraph  corporation  to  charge 
and  receive  as  great  a  compensation  for  a  shorter  as 
for  a  longer  distance.48 

§  191.    Change  or  Modification  of  Charges  by 

Commission. — Upon  application  to  the  Commission,  a 
telephone  or  telegraph  corporation  may,  in  special 
cases,  after  investigation,  be  authorized  by  the  Com- 
mission to  charge  less  for  a  longer  than  for  a  shorter 
distance  service  for  the  transmission  of  messages  or 
conversations,  and  \the  Commission  may  from  time  to 
time  prescribe  the  extent  to  which  such  telephone  or 
telegraph  corporation  may  be  relieved  from  the  oper- 
ation and  requirements  of  this  section.50 

§  192.  Switch  and  Spur  Connections. — Every  rail- 
road corporation,  upon  the  application  of  any  corpo- 
ration or  person,  being  a  shipper  or  receiver  or 
contemplated  shipper  or  receiver  of  freight,  for  a 
connection  between  the  railroad  of  such  railroad  cor- 
poration and  any  existing  or  contemplated  private 
track,  tracks  or  railroad  of  such  corporation  or  person, 
shall  make  such  connection  and  provide  such  switches 

o  Section  24   (b),  p.  32. 
50   lb. 


152  CALIFORNIA   PUBLIC   UTILITIES   ACT.  §§  193,  194 

and  tracks  as  may  be  necessary  for  that  purpose  and 
deliver  and  receive  cars  thereover;  provided,  that  such 
connection  is  reasonably  practicable  and  can  be  in- 
stalled and  used  without  materially  increasing  the 
hazard  of  the  operation  of  the  railroad  with  which 
such  connection  is  sought,  and  that  the  business  which 
may  reasonably  be  expected  to  be  received  by  such 
railroad  corporation  over  such  connection  is  sufficient 
to  justify  the  expense  of  such  connection  to  such  rail- 
road corporation.61 

§  193.    Duty  to  Construct,  and  to  Receive  and 

Deliver  Freight. — Under  the  conditions  specified  in 
the  proviso  in  subsection  (a)  hereof,  every  railroad 
corporation,  upon  the  application  of  any  corporation 
or  person,  being  a  shipper  or  receiver  or  contemplated 
shipper  or  receiver  of  freight,  shall  construct  upon  its 
right  of  way  a  spur  or  spurs  for  the  purpose  of  re- 
ceiving and  delivering  freight  thereby,  and  shall  re- 
ceive and  deliver  freight  thereby.52 

§  194.    Foreign    Public    Utilities    Excluded. —  No 

foreign  corporation,  other  than  those  which  by  a  com- 
pliance with  the  laws  of  this  state  are  entitled  to 
transact  a  public  utility  business  within  this  state, 
shall  henceforth  transact  within  this  state  any  public 
utility  business,  nor  shall  any  foreign  corporation 
which  is  at  present  lawfully  transacting  business 
within  this  state  henceforth  transact  within  this 
state  any  public  utility  business  of  a  character  dif- 
ferent from  that  which  it  is  at  present  authorized 
by  its  charter  or  articles  of  incorporation  to  transact, 
nor  shall  any  license,  permit  or  franchise  to  own,  con- 
trol, operate  or  manage  any  public  utility  business  or 
any  part  or  incident  thereof  be  henceforth  granted  or 

bi  Section  25    (a),  p.  33. 
62  Section  25    (b),  p.  33. 


§§  195-197  DUTIES   OF   PUBLIC    UTILITIES.  153 

transferred,  directly  or  indirectly,  to  any  foreign  cor- 
poration which  is  not  at  present  lawfully  transacting 
within  this  state  a  public  utility  business  of  like  char- 
acter; provided,  that  foreign  corporations  engaging  in 
commerce  with  foreign  nations  or  commerce  among 
the  several  states  of  this  Union  may  transact  within 
this  state  such  commerce  and  intrastate  commerce  of 
a  like  character.53 

§  195.  Street  and  Interurban  Railroad — Fares  on. 
No  street  or  interurban  railroad  corporation  shall 
charge,  demand,  collect  or  receive  more  than  five  cents 
for  one  continuous  ride  in  the  same  general  direction 
within  the  corporate  limits  of  any  city  and  county, 
or  city  or  town,  except  upon  a  showing  before  the  Com- 
mission that  such  greater  charge  is  justified;  provided, 
that  until  the  decision  of  the  Commission  upon  such 
showing,  a  street  or  interurban  railroad  corporation 
may  continue  to  demand,  collect  and  receive  the  fare 
in  effect  on  October  10,  1911,  or  at  the  time  the  Com- 
mission acquires  as  to  such  corporation  the  power  to 
fix  fares  within  such  city  and  county,  or  city  or  town.84 

§  195.     Transfers. — Every  street  or  interurban 

railroad  corporation  shall  upon  such  terms  as  the  Com- 
mission shall  find  to  be  just  and  reasonable  furnish 
to -its  passengers  transfers  entitling  them  to  one  con- 
tinuous trip  in  the  same  general  direction  over  and 
upon  the  portions  of  its  lines  within  the  same  city  and 
county,  or  city  or  town,  not  reached  by  the  originating 
car.55 

§  197.  Information  and  Details  to  be  Furnished — 
Tabulation,  etc. — Every  public  utility  shall  furnish  to 
the  Commission  in  such  form  and  such  detail  as  the 

83  Section  26,  p.  33. 
64  Section  27,  p.  33. 
86  lb.,  p.  34. 


154  CALIFORNIA   PUBLIC    UTILITIES   ACT.         §§  198-200 

Commission  shall  prescribe  all  tabulations,  computa- 
tions and  all  other  information  required  by  it  to  carry 
into  effect  any  of  the  provisions  of  this  act,  and  shall 
make  specific  answers  to  all  questions  submitted  by 
the  Commission.86 

§  198.  Filling  Out  Blanks— Reason  for  Fail- 
ure to  be  Given. — Every  public  utility  receiving  from 
the  Commission  any  blanks  with  directions  to  fill  the 
same  shall  cause  the  same  to  be  properly  filled  out  so 
as  to  answer  fully  and  correctly  each  question  pro- 
pounded therein;  in  case  it  is  unable  to  answer  any 
question,  it  shall  give  a  good  and  sufficient  reason  for 
such  failure.57 

§  199.    Delivering   Copies  of   Maps,  Profiles, 

etc. — Inventory  of  Property. — Whenever  required  by 
the  Commission,  every  public  utility  shall  deliver  to 
the  Commission  copies  of  any  or  all  maps,  profiles,  con- 
tracts, agreements,  franchises,  reports,  books,  accounts, 
papers  and  records  in  its  possession  or  in  any  way 
relating  to  its  property  or  affecting  its  business,  and 
also  a  complete  inventory  of  all  its  property  in  such 
form  as  the  Commission  may  direct.58 

§  200.    To  be  Kept  Private. — No  information 

furnished  to  the  Commission  by  a  public  utility,  ex- 
cept such  matters  as  are  specifically  required  to  be 
open  to  public  inspection  by  the  provisions  of  this  act, 
shall  be  open  to  public  inspection  or  made  public  ex- 
cept on  order  of  the  Commission,  or  by  the  Commission 
or  a  commissioner  in  the  course  of  a  hearing  or  pro- 
ceeding.59 

56  Section   28    (a),  p.  34. 

57  Section  28   (b),  p.  34. 

58  Section  28   (c),  p.  34. 
5»  Section  28  (d),  p.  34. 


§§  201-204  DUTIES    OF    PUBLIC    UTILITIES.  156 

§  201.     Misdemeanor  to  Divulge. — Any  officer 

or  employee  of  the  Commission  who,  in  violation  of 
the  provisions  of  this  subsection,  divulges  any  such  in- 
formation shall  be  guilty  of  a  misdemeanor.60 

§  202.  Annual  Report  of  Public  Utilities. — Every 
public  utility  shall  annually  furnish  to  the  Commission 
at  such  time  and  in  such  form  as  the  Commission  may 
require  a  report  in  which  the  utility  shall  specifically 
answer  all  questions  propounded  by  the  Commission 
upon  or  concerning  which  the  Commission  may  desire 
information.  The  Commission  shall  have  authority  to 
require  any  public  utility  to  file  monthly  reports  of 
earnings  and  expenses,  and  to  file  periodical  or  special, 
or  both  periodical  and  special  reports  concerning  any 
matter  about  which  the  Commission  is  authorized  by 
this  or  any  other  act  to  inquire  or  to  keep  itself  in- 
formed, or  which  it  is  required  to  enforce.61 

§  203.    To  be  Made  Under  Oath.— All  reports 

shall  be  under  oath  when  required  by  the  Commis- 
sion.82 

§  204.  Compliance  With  Commission's  Orders.— 
Every  public  utility  shall  obey  and  comply  with  each 
and  every  requirement  of  every  order,  decision,  direc- 
tion, rule  or  regulation  made  or  prescribed  by  the  Com- 
mission in  the  matters  herein  specified,  or  any  other 
matter  in  any  way  relating  to  or  affecting  its  business 
as  a  public  utility,  and  shall  do  everything  necessary 
or  proper  in  order  to  secure  compliance  with  and  ob- 
servance of  every  such  order,  decision,  direction,  rule 
or  regulation  by  all  of  its  officers,  agents  and  em- 
ployees.63 

«o  lb. 

6i  Section  29,  p.  34. 

62  lb. 

63  Section  30,  p.  34. 


156  CALIFORNIA   PUBLIC    UTILITIES  ACT. 

CHAPTER  VIII. 

POWERS  AND  DUTIES  OF  RAILROAD  COMMISSION. 

§  205.     Powers  of  Commission. 

§  206.     Charges,  Rates,  etc.,  to  be  Fixed  by  Commission. 

§  207.     Investigating   and   Fixing   Single  Rates,   etc. 

§  208.     Joint  Rates  and  Through  Rates  on  Common  Carriers. 

§  209.     Transportation  in   Originating  Car. 

§  aiO.     Division    of   Rates,   etc. — Supplemental   Order. 

§  211.     Powers  of  Commission  to  Establish  Rates  and  Fix  Division  of. 
§  212.     Interstate  Rates — Application  to  Commerce  Commission. 
§  213.     Service,  Equipment,  Facilities — To  be  Fixed  by  Commission. 
§  214.     Rules  and  Regulations,  etc.,  to  be  Prescribed  by  Commission. 
§  215.     Power   of   Commission   to   Order  Additions,   Changes,   Improve- 
ments. 

§  216.     Site  of  New  Structure  may  be  Fixed. 

§  217.     Making  at  Joint  Cost — Apportionment  of  Cost. 

§  218. Fixing  Proportion   of  Cost  by  Commission. 

§  219.     Power  of  Commission  to  Order  Changes  in  Time  Schedule  and 
Running  of  Additional  Cars  and  Trains. 

§  220.     Track  Connections. 

§  221.     Cities  and   Towns. 

§  222.     Expense   of  Connections. 

§  223.     Switch  and  Spur  Connections. 

§  224.     Any  Corporation  or  Person  Entitled  to  Connect — Division 

of  Primary  Expense. 

§  225.     Interchange  Switching  to  Industrial  Track. 

§  226.     Telephone   and   Telegraph    Line — Physical    Connection. 

§  227.     Apportionment  of  Expense  and  Division  of  Joint  Rates. 

§  228.     Use  of  Joint  Facilities. 

§  229.     Liability  for  Damages  from  Use. 

§  230.     Health  and  Safety— Safety  Devices. 

§  231.     Grade  Crossings — Prohibition  of  Future. 

§  232.     Determining  Manner  of — Abolishing  Established. 

§  233.     Investigation  of   Accidents — Orders  and  Recommendations. 

§  234.     Orders,  etc.,  nor   Report  Filed  With,   to  be   Admitted  in 

Evidence. 

§  235.     Report   to   be   Filed  With   Commission. 

§  236.     Rules  to  Expedite  Traffic— Power  of  Commission  to  Provide. 

§  237.     Demurrage   Charges. 

§  238.     Express  and  Telegraph  Rules  and  Regulations. 

§  239.     Power  of  Commission  as  to  Service,  etc.,  of  Public  Utilities. 

§  240.     Power  of   Commissioners,   etc.,   to   Enter   Premises,   etc. — 

Right  to  be  Present  at  Test. 
{  241.     Consumers  and  Users  may  have  Appliances  Tested. 


POWERS  AND  DUTIES  OF   RAILROAD   COMMISSION.  157 

§  242. Commission    may   Prescribe   Fees   for   Testing. 

§  243.     Valuation   of  Property. 

§  244.     Revaluation,  etc.,  Extension,  etc. 

§  245.     Uniform  System  of  Accounting — Commission  may  Prescribe. 

§   246.     Forms  in  Addition  to  Those  of  Commerce  Commission. 

§  247.     Unlawful  to  Keep  Records  and  Accounts  Otherwise  Than 

as  Prescribed. 

§  248.     Depreciation  Accounts. 

§  249.     Rates  of  Depreciation  to  be  Fixed  by  Commission. 

§  250.     Public   Utilities   to  Conform  Depreciation  to  Rates  of  as 

Fixed. 

§  251.     New   Construction — Certificate   from   Commission. 

§  252.     Certificate  not  Required  When. 

§  253.     Interference  With  Other  Public  Utilities. 

§  254.     Franchises  and  Privileges. 

§  255.     Right  to  Proceed  Under  Former  Franchises  and  Privileges, 

When. 

§  256.     Invalid   Right   or   Privilege   not   "Validated. 

§  257.     Certified   Copies  of   Articles,   etc.,  to   be   Filed. 

§  258.     Evidence  of  Franchises,  etc.,  to  be  Filed. 

§  259.     Power  to   Issue  or  Review  Certificate. 

§  260.  Franchises,  etc.,  yet  to  be  Secured — Order  for  and  Cer- 
tificate When  Secured. 

§  261.     Transfer  of  Property,  Franchises,  etc. — Order  Authorizing. 

§  262.     Sale,  Lease,  etc.,  Without  Order  of  Authorization  Void. 

§  263.     Permission  or  Approval  not   to  Validate  Void  or  Lapsed 

Franchises,  etc. 

§  264.     •  Construction  to  be  Given  Section. 

§  265.  Stock  of  Other  Utility— Not  to  be  Purchased  or  Held  With- 
out Authority  of  Commission. 

§  266.     Assignment,  etc.,  of  Stock  Without  Authorization,  Void. 

§  267.     Holding  of  Stock,  etc.,  Heretofore  Acquired,  not  Affected. 

$  268.  Power  to  Issue  Stock,  Bonds,  etc. — Special  Privileges — Control 
of. 

§  269.     Purpose  for  Which  Bond,  etc.,  may  be  Issued. 

§  270.     Power  of  Commission  on  Authorizing  Bonds. 

§  271.     Hearing  to  Determine  Whether  to  Authorize   Bond  Issue, 

etc. 

§  272.    • Commission  to  Fix  and  Determine  Amount  of  Issue. 

§  273.  Authorizing  Bond  Issue,  etc.,  Greater  or  Less  Than  Au- 
thorized Stock. 

§  274.     Application  of  Proceeds  of  Bond  Issue,  etc.,  to  be  Made 

as  Commission  Directs. 

§  275.     Notes  may  be  Issued,  Without  Authorization,  When. 

§  276.     Capitalization   of   Franchises,   etc.,  not   to   be   Authorized. 

§  277.  Disposition  of  Proceeds  of  Bond  Issue,  etc.,  to  be  Ac- 
counted for. 


158  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  205 

§  278.     Issue  of  Bonds,  Stock,  etc.,  Without  Authorization,  Void — 

Effect  of  Failure  to  Authorize. 

§  279.     Penalty    for   Issuing   Bonds,   etc.,   Without   Authorization, 

and   for  Failure  to   Apply  Proceeds  as  Directed. 

§  280.  Felony  to  Issue  Bonds,  Stock,  etc.,  Without  Authoriza- 
tion, or  to  Apply  Otherwise  Than  as  Directed. 

§  281.     State  not  Obligated  by  Authorization  of  Bond  Issue,  etc. 

§  282.  Issue  of  Bonds,  Stock,  etc.,  After  Act  Takes  Effect,  With- 
out  Prior   Authorization,   Void. 

§  283.     Power  of  Commission  to  Impose  Conditions. 

§  205.  Powers  of  Commission. — The  Railroad  Com- 
mission is  hereby  vested  with  power  and  jurisdiction 
to  supervise  and  regulate  every  public  utility  in  the 
state  and  to  do  all  things,  whether  herein  specifically 
designated  or  in  addition  thereto,  which  are  necessary 
and  convenient  in  the  exercise  of  such  power  and  juris- 
diction.1 

i  Extraordinary  Session   1911,  c.   14,   §  31,  p.   35. 

I.  Generally. 

By  act  of  December  23,  1911,  the  legislature  intended  the  Railroad 
Commission  to  be  a  tribunal  of  great  dignity  and  responsibility,  having 
to  deal  with  fixed  interest  and  complicated  regulations  and  economical 
questions,  and  have  given  powers  appropriate  to  the  discharge  of  its 
duties.  See  Minneapolis,  St.  P.  &  Ste.  Marie  R.  Co.  v.  Railroad  Com- 
missioners,  136  Wis.   146,   116  N.   W.   915. 

The  rights  of  the  public  and  the  rights  of  the  railroad  under  the 
new  California  law  must  be  ascertained  and  developed  by  the  Railroad 
Commission  slowly  and  laboriously  moving  from  precedent  to  precedent 
as  new  instances  arise,  after  the  manner  of  the  common-law  courts.  See 
Minneapolis,  St.  P.  &  Ste.  M.  R.  Co.  v.  Railroad  Commission,  136  Wis. 
146,  168,  116  N.  W.  915. 

See  Bates  v.  Relyea,  23  Wend.   (N.  Y.)   336,  341. 

Where  a  power  is  given  by  statute,  there  is  carried  with  it  an  implied 
power  to  do  everything  reasonably  necessary  to  make  it  effective. 
Missouri,  O.  &  G.  R.  Co.  v.  State   (Okl.),  119  Pac.  117. 

Railroad  Commission  is  authorized  to  exercise  not  only  legislative,  but 
executive,  administrative  and  judicial  powers.  St.  Louis  &  S.  F.  R. 
Co.  v.  Williams,  25  Okl.  662,  107  Pac.  428. 

Constitutional  provision  permitting  corporation  to  be  formed  pursu- 
ant to  law  and  providing  that  the  law  may  be  amended,  with  the  pro- 
hibition that  it  shall  not  be  done  in  such  a  manner  as  to  impair  fixed 
corporate  rights,  does  not  prohibit  the  application  of  the  Railroad  Com- 
mission Act   (Or.  Laws  1907,  p.  93,  c.  53,  §  48),  making  it  an  offense 


§  205         POWERS  AND  DUTIES  OF  RAILROAD  COMMISSION.  159 

for  a  railroad  company  to  collect  different  fares  for  the  same  or  a 
like  service,  to  an  electric  company  operating  wholly  within  the  limits 
of  a  city,  and  the  reduction  of  fares  charged,  and  the  enforcement  of 
transfers,  where  the  electric  company  is  under  a  contract  with  its 
predecessor  prohibiting  the  charge  of  the  fixed  amount,  with  transfer 
privileges.  Portland  R.  L.  &  P.  Co.  v.  Railroad  Commission,  56  Or. 
468,  105  Pac.  709. 

Authority  and  duty  of  Railroad  Commission  are  not  limited  to  matters 
concerning  public  safety  and  health,  but  extend  to  matters  concerning 
public  comfort  and  convenience.  In  consideration  of  the  latter  subject 
the  number  of  persons  who  may  be  concerned  or  interested  at  some 
particular  point  enter  into  the  consideration  as  an  important  factor. 
Morgan's  La.  &  T.  R.  &  S.  S.  Co.  v.  Railroad  Commission,  109  La. 
247,   33    So.    24. 

II.     To  Make  and  Enforce  Regulations. 

Power  of  Railroad  Commission  to  make  and  enforce  regulations  as 
to  the  compressing  of  cotton  shipped  over  railroads  under  the  Texas 
statute  and  Railroad  Commission  Act.  Railroad  Commission  v.  Houston 
&  T.  C.  R.  Co.,  90  Tex.  340,  349,  355,  38  S.  W.  750. 

An  order  of  the  Minnesota  Railroad  Commission  is  conclusive  under 
the  provisions  of  General  Statutes  of  1894,  section  393,  as  to  the  rea- 
sonableness of  the  tariff  in  the  absence  of  an  appeal  therefrom.  State 
ex  rel.  Railroad  &  Warehouse  Commission  v.  Minneapolis  &  St.  L.  R. 
Co.,  80  Minn.  191,  83  N.  W.  60. 

III.     To  Correct  Abuses. 

Railroad  Commission's  power  to  correct  abuses  extends  only  to  such 
as  are  defined  by  the  law;  it  does  not  authorize  the  Commission  to 
enact  a  law  defining  what  is  an  abuse.  Railroad  Commission  v.  Houston 
&  T.  C.  R.  Co.,  90  Tex.  340,  352,  38  S.  W.  750. 

Power  to  "correct  abuses"  conferred  by  the  legislature  upon  the  Rail- 
road Commission  is  not  limited  to  regulation  of  freight  and  passenger 
traffic.  Railroad  Commission  v.  Houston  &  T.  C.  R.  Co.,  90  Tex.  340, 
351,  38  S.  W.  750. 

Texas  Constitution  (art.  X,  §  2)  empowering  and  directing  the  legis- 
lature to  enact  laws  to  correct  abuses  on  the  different  railroads  of  the 
state,  and  this  direction  imposing  the  right  and  duty  on  the  part 
of  the  legislature  to  pass  laws  for  the  correction  of  all  abuses  or 
improper  uses  of  the  franchises  which  have  been  or  may  be  granted 
to  railroads  in  the  state,  as  well  as  to  all  abuses  connected  with  their 
gross  abuse  of  the  public  traffic  in  the  exercise  of  such  franchises , 
the  power  of  the  legislature  is  not  limited  to  the  correction  of  abuses 
in  relation  to  the  rates  charged  for  the  carriage  of  passengers  and 
freight.  Railroad  Commission  v.  Houston  &  T.  C.  R.  Co.,  90  Tex.  340, 
38  S.  W.  750. 


160  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  205 

IV.     To  Prevent  Discrimination. 

Discriminatory  charges  by  electric  railway  may  be  corrected  by  "Rail- 
road Commission.  Portland  B.  L.  &  T.  Co.  v.  Eailroad  Commission, 
56  Or.  468,  105  Pac.  709. 

As  to  what  constitutes  unlawful  discrimination  and  preference  by 
carriers,  see  note,  94  C.  C.  A.  230. 

Carrier's  charge  should  not  only  be  reasonable,  but  should  also  be 
equal  as  to  all  persons  affected  thereby.  Portland  R.  L.  &  P.  Co.  v. 
Eailroad  Commission,  56  Or.  468,  105  Pac.  709.  See  Messenger  v. 
Pennsylvania  E.  Co.,  36  N.  J.  L.  407,  13  Am.  Eep.  457,  37  N.  J.  L. 
351,   18  Am.    Eep.   754. 

The  Illinois  Act  of  1873,  preventing  unjust  discrimination  between 
persons  and  places  in  the  rates  charged  for  transportation,  is  valid 
in  so  far  as  it  relates  to  unreasonable  rates  of  charge  wholly  within 
the  state.  Chicago,  B.  &  Q.  E.  Co.  v.  Jones,  149  HI.  361,  37  N.  E. 
247. 

The  Illinois  Act  of  1873,  relating  to  extortion  and  unjust  dis- 
crimination as  to  rates  charged,  construed.  Chicago,  B.  &.  Q.  E.  Co. 
v.  Jones,  149  111.  361,  37  N.   E.  247. 

Discrimination  in  rates  charged  and  transfers  previously  unjustly  made 
on  different  branches  by  city  railroads  may  be  corrected  and  regulated 
by  the  Eailroad  Commission.  Portland  E.  L.  &  P.  Co.  v.  Eailroad 
Commission,  56  Or.  468,  105  Pac.  715,  109  Pac.  273. 

Eates  between  rival  localities  must  be  equal;  and  in  establishing  this 
equality  the  Eailroad  Commission  cannot  take  into  consideration  the 
fact  that  the  roadbed  for  the  electric  road  and  the  value  thereof  was 
conveyed  by  one  locality.  Portland  E.  L.  &  P.  Co.  v.  Eailroad  Commis- 
sion, 56  Or.  468,  109  Pac.  273. 

Discrimination  in  rates  because  of  ownership  of  goods  tendered  for 
carriage  is  made  criterion  by  which  charges  are  to  be  fixed  is  illegal. 
Interstate  Commerce  Commission  v.  Delaware  L.  &  W.  E.  Co.,  220 
U.  S.  235,  31  Sup.  Ct.  392,  55  L.  ed.  448. 

Provision  of  statute  requiring  equality  in  charge  for  transportation 
of  freight  and  passengers  made  under  like  conditions  and  circumstances 
which  has  been  adopted  from  another  jurisdiction,  in  which  jurisdiction 
it  has  received  construction,  is  supposed  to  have  been  adopted  with 
the  construction  placed  upon  it.  See  Interstate  Commerce  Commission 
v.  Delaware  L.  &  W.  E.  Co.,  220  U.  S.  235,  31  Sup.  Ct.  392,  55  L.  ed.  448. 

Carrier  may  not  have  paid  the  aggregation  of  shipment  by  various 
owners  for  the  purpose  of  securing  carload  ratings,  or  the  combination 
of  such  shipment  by  forwarding  agents  in  order  to  secure  carload  rates, 
where  the  regulations  prevent  preferences  and  discriminations.  Inter- 
state Commerce  Commission  v.  Delaware,  L.  &  W.  E.  Co.,  220  U.  S. 
235,  31  Sup.  Ct.  392,  55  L.  ed.  448. 

Dissimilar  conditions  in  transportation  are  not  produced  by  owner- 
ship or  nonownership  in  the  party  offering  the  goods  for  shipment. 
Interstate  Commerce  Commission  v.  Delaware,  L.  &.  W.  E.  Co.,  220 
U.  S.  235,  31  Sup.  Ct.  392,  55  L.  ed.  448. 


§  205         POWERS  AND  DUTIES  OF  RAILROAD   COMMISSION.  161 

Preferences  and  advantages  to  particular  parties  being  prohibited 
by  statute,  such  preferences  and  advantages  in  freight  are  not  limited 
to  passenger  rates,  and  the  railroad  commission  has  power  to  make 
regulations  correcting  such  abuses.  Railroad  Commission  v.  Houston 
&  T.  C.  R.  Co.,  90  Tex.  340,  351,  38  S.  W.  750. 

Faros  established  by  carriers  voluntarily  upon  certain  branch  lines 
furnish  a  measure  by  which  to  govern  the  road  for  similar  service 
upon  other  branch  lines.  Portland  R.  L.  &  P.  Co.  v.  Railroad  Commis- 
sion,  56  Or.   468,   105   Pac.   709. 

Discrimination  complained  of  consisting  in  giving  transfer  from  an- 
other line  of  railroad  to  patrons  of  one  branch  of  the  line,  while  deny- 
ing such  privilege  to  patrons  of  another  branch  line,  the  Commission  has 
jurisdiction  where  it  has  before  it  the  railroad  issuing  such  transfers, 
it  not  being  necessary  that  the  other  line  or  lines  of  railroad  shall 
be  parties  to  the  proceeding  before  the  Commission,  and  the  Commission 
may  order  that  the  giving  of  such  preferences  shall  cease  and  the  unlaw 
ful  discrimination  either  by  giving  transfers  to  patrons  of  branch  lines 
or  by  desisting  from  giving  them  to  patrons  of  any  branch  line.  Port- 
land R,  L.  &  P.  Co.  v.  Railroad  Commission,  56  Or.  468,  109  Pac  273. 
Railroad  Commission  Act,  making  it  an  offense  for  any  railroad 
company  or  other  carrier  to  charge  or  collect  for  carrying  one  person 
more  than  his  demand  from  another  for  a  like  contemporaneous  service, 
applies  to  the  different  lines  of  an  electric  railroad  company,  not- 
withstanding the  fact  the  conditions,  such  as  the  cost  of  construction, 
etc.,  are  not  the  same  on  the  several  lines.  Portland  R.  L.  &  P.  Co. 
v.  Railroad  Commission,  56  Or.  468,  105  Pac.  709. 

The  amendment  to  the  Oregon  Railroad  Commission  Act  (Laws  1909, 
c.  97,  p.  158,  §§  1,  2),  making  the  Railroad  Commission  law  applicable 
to  undue  or  unreasonable  preferences  or  advantageous  to  any  particular 
locality,  was  adopted  out  of  an  abundance  of  caution,  to  remove  all 
doubt,  for  plenary  power  to  correct  discrimination  as  to  locality 
was  impliedly  granted  by  the  original  Railroad  Commission  Act  before 
the  enactment  of  these  sections  as  an  amendment  thereto.  Portland 
R.   L.   &  P.   Co.  v.   Railroad   Commission,   56   Or.   468,   105   Pac.   709. 

Acts  for  which  penalty  is  provided  by  section  52  of  the  Oregon 
Railroad  Commission  Act  (Laws  1907,  c.  53,  p.  95)  are  not  covered 
by  the  condition  of  the  bond  contemplated  by  section  33  of  that  act 
(Laws  1907,  c.  53,  p.  87),  as  amended  in  1909  (Laws  1909,  c.  103,  p. 
163).     Oregon   R.  k   Nav.  Co.  v.   Campbell,   173   Fed.   989. 

The  legislature  of  Oregon,  in  the  enactment  of  Bectioo  4S  of  the 
Railroad  Commission  Act  (Laws  1907,  c.  53,  p.  93),  intended  that  the 
prohibition  against  discretion  should  not  be  limited  to  the  transporta- 
tion over  the  same  line,  but  should  extend  to  service  rendered  on  other 
Hues  operated  by  the  same  railroad  company,  although  the  cost  of 
const  ruction  or  maintenance  and  the  volume  of  business  might  make 
the  operation  of  one  line  more  remunerative  than  that  of  the  other. 
Portland  R.  L.  &.  P.  Co.  v.  Railroad  Coinmissiou,  56  Or.  46S,  105  Pac. 
709. 

11 


162  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  205 

Difference  between  rates  compared  may  be  so  explained  by  circum- 
stances as  to  deprive  the  low  rate  of  any  bearing  on  the  higher;  but 
the  discretion,  without  the  excuse  recognized  by  law,  is  and  of  itself 
unjust  and  unreasonable.  Portland  R.  L.  &  P.  Co.  v.  Railroad  Com- 
mission,  56   Or.   468,   109   Pae.   275. 

Right  of  one  locality  to  reasonable  and  nondiscretionary  rates  is 
not  increased,  nor  is  the  equal  right  of  a  competing  locality  diminished, 
by  reason  of  a  contract  entered  into  by  the  company's  predecessor  prior 
to  the  passage  of  the  Railroad  Commission  Act,  or  by  reason  of  municipal 
or  other  subscriptions  advanced  for  the  building  of  the  road.  Port- 
land R.  L.  &  P.  Co.  v.  Railroad  Commission,  56  Or.  468,  109  Pac.  275. 
Section  48  of  the  Oregon  Railroad  Commission  Act  (Laws  1907,  c. 
53,  p.  93)  does  not  impair  the  obligation  of  contract  respecting  rates 
entered  into  before  its  enactment,  for  the  reason  that  such  contract 
necessarily  implies  the  reservation  of  the  right  by  the  state,  under  the 
exercise  of  its  police  power,  to  regulate  in  the  future  for  the  public 
welfare.  Portland  R.  L.  &  P.  Co.  v.  Railroad  Commission,  56  Or.  468, 
105  Pac.  713. 

V.    Regulate  and  Control  Railroads. 
Railroad   Commissioners   of   the  state   of   California  held  to   have  no 
jurisdiction  over  street  railways   operated  in  a   municipality  under   act 
of   April   15,   1880    (Stats.    1880,   p.   45).     Board   of   Railroad   Commrs. 
V.  Market  St.  R.  Co.,  132  Cal.  677,  64  Pac.  1055. 
See  part  VII,  this  note. 

The  Oregon  Railroad  Commission  Act  (Laws  1907,  c.  53,  p.  71,  §  11), 
the  last  sentence  of  which  provides  that  "this  act  shall  not  apply  to  the 
transportation  of  passengers  being  carried  solely  within  the  limits  of 
cities  by  street  and  other  railroads,  and  shall  not  apply  to  logging  or 
other  private  railroads  in  doing  business  as  common  carriers,"  does 
not  prohibit  the  Railroad  Commission  from  regulating  rates  for  pas- 
eenger  traffic  originating  or  extending  beyond  the  boundaries  of  the 
corporate  limits  of  any  city,  and  especially  of  the  city  of  Portland. 
Portland  R.  L.  &  P.  Co.  v.  Railroad  Commission,  56  Or.  468,  109  Pac. 
275. 

Railroad  company's  authority  to  collect  reasonable  fares  and  charges, 
though  a  vested  interest,  is  subject  to  reasonable  regulation  under  the 
police  power  of  the  state,  which  may  be  exercised  to  promote  the 
public  welfare,  and  to  establish  between  the  common  carrier  and  the 
passenger  and  shipper  such  rules  and  regulations  as  are  calculated  to 
secure  to  all  the  enjoyment  of  individual  rights,  in  so  far  as  such  rules 
and  regulations  are  consistent  with  a  like  enjoyment  of  the  rights  of 
others.  Portland  R.  L.  &  P.  Co.  v.  Railroad  Commission,  56  Or.  468, 
105  Pac.  713. 

Because  of  the  public  nature  of  the  business  carried  on  by  a  railroad 
and  the  interest  which  the  public  have  in  the  operation  thereof,  it  is 
subject  as  to  its  state  business,  to  state  regulation,  which  may  be 
exerted  either  directly  by  the  legislative  authorities,  or  by  the  adminis- 
trative bodies  endowed  with  power  to  that  end.     Atlantic  Coast  Line 


§  205         POWERS  AND  DUTIES  OF  RAILROAD  COMMISSION.  1G3 

v.  North  Carolina  Corporate  Commission,  206  U.  S.  1,  27  Sup.  Ct.  581, 
51  L.  ed.  933. 

The  question  of  the  reasonableness  of  rates  of  charge  ior  transporta- 
tion by  railroad  companies,  involving  as  it  does  the  element  of  rea- 
sonableness both  as  regards  the  company  and  as  regards  the  public, 
is  eminently  a  question  for  judicial  investigation,  requiring  due  process 
of  law  for  its  determination.  Chicago,  M.  &  St.  P.  B.  Co.  v.  Minnesota, 
134  U.  S.  418,  10  Sup.  Ct.  702,  33  L.  ed.  970.  To  same  effect,  In 
re  Canada  Northern  R.  Co.,  7  Fed.  563. 

As  to  right  to  regulate  street  railways  wholly  within  municipality, 
see  ante,  c.  5,  footnote  7. 

Limitation  of  speed  of  interstate  trains  at  approach  of  dangerous 
crossings  is  within  the  power  of  the  state,  in  the  absence  of  congressional 
legislation  upon  the  subject  matter.  Southern  R.  Co.  v.  King,  217  U.  S. 
524,  30  Sup.  Ct.  594,  54  L.  ed.  868;  Southern  R.  Co.  v.  Grizzle,  131 
Ga.  287,  62  S.  E.  177. 
See,  also,  ante,  c.  3,  §  65. 

Regulation  of  speed  within  populous  districts  of  municipalities  of 
interstate  trains  is  clearly  within  the  powers  of  the  state  and  the 
municipalities,  for  the  protection  of  the  lives  and  limbs  of  the  people. 
Erb  v.  Morasch,  177  U.  S.  548,  20  Sup.  Ct.  819,  44  L.  ed.  897,  affirming 
60  Kan.  251,  56  Pac.  133;  Chicago  &  A.  R.  Co.  v.  Carlinville,  200  111. 
314,  65  N.  E.   730,  93  Am.   St.  Rep.  190,  60  L.  R.  A.  391. 

Fact  train  carries  United  States  mail  does  not  affect  this  right  to 
regulate  speed.  Peterson  v.  State,  79  Neb.  132,  112  N.  W.  306,  126 
Am.  St.  Rep.  651,  14  L.  R.  A.,  N.  S.,  292.  See  Whitson  v.  Franklin, 
34   Ind.   392. 

VI.    Regulate   Liability  for  Injuries. 
State    regulation    prohibiting    carriers    from    contracting    for    exemp- 
tions from  or  limitation  of  liability  for  negligence  held  not  to  apply  to 
interstate   commerce.     Right   v.   Adams   Express    Co.,   230   Pa.    631,    79 
Atl.  760. 

State  regulation  of  telegraph  companies  preventing  them  from  limit- 
ing liability  for  failure  to  deliver  telegrams  addressed  to  a  person  in 
another  state  is  constitutional.  Western  Union  Tel.  Co.  v.  Commercial 
Milling  Co.,  218  U.  S.  406,  31  Sup.  Ct.  59,  54  L.  ed.  1088. 

Provision  in  charter  of  railroad  company  exempting  from  liability 
for  death  of  any  person  in  its  service,  even  where  caused  by  negligence, 
does  not  create  a  contract  right  in  the  company  which  is  protected  by 
the  contract  clause  of  the  federal  constitution.  The  subject  is  one 
over  which  the  state  legislature  possesses  a  regulating  power.  Texas 
&  N.  O.  R.  Co.  v.  Miller,  221  U.  S.  408,  31  Sup.  Ct.  534,  55  L.  ed.  789. 
"The  doctrine  that  a  charter  is  a  contract  which  the  federal  con- 
stitution protects  against  impairment  by  subsequent  legislation  is  ever 
limited  in  the  arc  of  its  operation  by  the  equally  well  settled  principle 
that  a  legislature  can  neither  bargain  away  the  public  power  nor  in  any 
wise  withdraw  from  its  successors  the  power  to  take  appropriate  means 
to   guard    the   safety,   health,   and   morals    of    all   who    may   be    within 


164  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  205 

their  jurisdiction."  Texas  &  N.  O.  R.  Co.  v.  Miller,  221  U.  S.  408,  31 
Sup.  Ct.  534,  55  L.  ed.  789.  See  Boston  Beer  Co.  v.  Massachusetts, 
97  U.  S.  25,  24  L.  ed.  985 ;  Northwestern  Fertilizer  Co.  v.  Hyde  Park,  97 
U.  S.  659,  24  L.  ed.  1U36;  Stone  v.  Mississippi,  101  U.  S.  814,  25  L. 
ed.  1079;  Douglas  v.  Kentucky,  168  U.  S.  488,  j.o  Sup.  Ct.  199,  42  L. 
ed.  553. 

"It  is  no  longer  doubted  that  the  legislature  may  require  that  trains 
shall  stop  at  every  railroad  crossing.  Public  safety  justifies,  if  it  does 
not  compel,  this.  If  the  legislature  may  require  a  stop,  why  may  it 
not  require  a  stop  of  sufficient  length  to  permit  passengers  to  get  on 
and  off  and  with  that  require  suitable  depot  privileges?  ....  It  would 
seem  to  be  a  reasonable  exercise  of  the  police  power  to  compel  rail- 
road companies  to  furnish  suitable  accommodations  for  passengers  at 
all  places  where  they  receive  and  discharge  them  from  their  trains. 
Public  welfare,  if  not  public  safety,  justifies  this."  State  ex  rel.  Bar- 
ton County  v.  Kansas  City  F.  T.  S.  &  G.  B.  Co.,  32  Fed.  722. 

VII.    Interstate  Commerce  not  to  be  Interfered  With. 

Interstate  commerce  has  no  jurisdiction  to  fix  freight  rates  on  ship- 
ments not  wholly  within  a  state  or  territory.  Ft.  Smith  &  W.  R.  Co.  v. 
Chandler  Cotton  Oil  Co.,  25  Okl.  82,  106  Pac.  10. 

Under  the  provisions  of  the  Federal  Constitution,  article  I,  sections 
8  and  10,  Congress  has  the  sole  power  to  regulate  commerce  among  the 
several  states,  and  any  state  by  its  legislature  or  Railroad  Commission 
cannot  lay  imposts  or  duties  upon  the  imports  or  exports  or  otherwise 
regulate  commerce  and  traffic  from  beyond  the  borders  of  the  state. 
Smith  v.  Farr,  46  Colo.  364,  104  Pac.  401. 

Power  to  fix  the  time  when  an  interstate  shipment  of  intoxicating 
liquors  loses  its  interstate  character  and  becomes  subject  to  state  con- 
trol is  exclusively  in  Congress.  McCord  v.  State,  2  Okl.  Cr.  204,  101 
Pac.   280. 

Where  the  railroad  is  engaged  in  interstate  commerce  and  a  ship- 
ment is  sent  by  a  shipper  to  a  point  beyond  the  state  line,  and  the 
charges  for  the  transportation  are  excessive,  the  shipper  seeking  redress 
must  apply  to  the  Interstate  Commerce  Commission  and  not  to  the 
state  Railroad  Commission  or  to  a  state  court.  Missouri,  K.  &  T.  R. 
Co.  v.  New  Era  Milling  Co.,  80  Kan.  141,  101  Pac.  1011. 

Rates  established  by  a  state  for  its  Commission  for  the  carriage  of 
interstate  freight  or  passengers,  while  necessarily  affecting  indirectly 
interstate  rates,  that  fact  does  not  render  the  act  establishing  the 
said  rates  unconstitutional  as  an  interference  with  the  interstate  com- 
merce powers  of  Congress.     In  re  Arkansas  Rate  Cases,  187  Fed.  290. 

Regulation  of  the  state  Railroad  Commission  governing  the  shipment 
oi  livestock  does  not  apply  to  a  shipment  from  a  point  out  of  the 
state  to  a  point  within  the  state.  Leibengood  v.  Mo.  K.  &  T.  Co.,  83 
Kan.  25,  109  Pac.  988. 

An  order  of  the  Railroad  Commission  relating  to  free  storage  on  less 
than   carload   shipments   consigned   to   persons   living   at   points   five   or 


§  206         POWERS  AND  DUTIES  OF  RAILROAD  COMMISSION.  165 

more  miles  from  the  railroad  station  is  confined  to  commerce  ami  car 
riage  within  the  state  and  does  not  apply  to  interstate  commerce  con- 
signed to  a  resident  of  the  state  at  such  a  station.  Missouri,  K.  &  T. 
Co.  v.  New  Era  Milling  Co.,  80  Kan.  141,  101  Pac.  1011. 

State  regulation  requiring  all  natural  gas  to  be  transported  by  do- 
mestic corporations  whose  charter  shall  provide  that  the  gas  shall  be 
transported  only  between  points  in  the  state,  and  shall  not  be  trans- 
ported to,  nor  delivered  to,  any  person  or  corporation  engaged  in  trans- 
porting or  furnishing  gas  to  points  outside  of  the  state,  and  giving  to 
Buch  domestic  corporations  exclusive  right  of  eminent  domain  ami  the 
use  of  highways,  unconstitutionally  interferes  with  interstate  commerce, 
and  cannot  be  justified,  as  an  exercise  of  the  police  power  of  the  state 
to  conserve  its  natural  resources.  West  v.  Kansas  City  Natural  Gas 
Co.,  221  U.  S.   229,  31  Sup.  Ct.  564,  55  L.  ed.  716. 

Restricting  allowance  by  carrier  to  owner  of  elevator  for  elevating 
grain  in  transit  in  which  he  has  an  interest  to  such  grain  as  shall  be 
reshipped  within  ten  days  is  within  the  power  of  the  Interstate  Com- 
merce Commission.  Interstate  Commerce  Commission  v.  Diffenbaugh 
(U.  S.,  Nov.  13,  1911),  modifying  176  Fed.  409. 

§  206.  Charges,  Rates,  etc.,  to  be  Fixed  by  Commis- 
sion.— Whenever  the  Commission,  after  a  hearing  had 
upon  its  own  motion  or  upon  complaint,  shall  find  that 
the  rates,  fares,  tolls,  rentals,  charges  or  classifications, 
or  any  of  them,  demanded,  observed,  charged  or  col- 
lected by  any  public  utility  for  any  service  or  product 
or  commodity,  or  in  connection  therewith,  including 
the  rates  or  fares  for  excursion  or  commutation  tickets, 
or  that  the  rules,  regulations,  practices  or  contracts, 
or  any  of  them,  affecting  such  rates,  fares,  tolls,  rentals, 
charges  or  classifications,  or  any  of  them,  are  unjust, 
unreasonable,  discriminator}'  or  preferential,  or  in  any- 
wise in  violation  of  any  provision  of  law,  or  that  such 
rates,  fares,  tolls,  rentals,  charges  or  classifications  are 
insufficient,  the  Commission  shall  determine  the  just, 
reasonable  or  sufficient  rates,  fares,  tolls,  rentals, 
charges,  classifications,  rules,  regulations,  practices  or 
contracts  to  be  thereafter  observed  and  in  force,  and 
shall  fix  the  same  by  order  as  hereinafter  provided.2 

*  Section  32  (a),  p.  35. 


IP 

166  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  206 

I.    Fixing  Bates. 
1.     Power. 

Legislature  has  power  to  declare  what  is  a  reasonable  compensation 
and  to  fix  the  reasonable  maximum  rates  of  charge  for  common  car- 
riers.    Dow  v.  Beidelman,  125  U.  S.  680,  8  Sup.  Ct.  1028,  31  L.  ed.  841. 

Regulation  of  interstate  commerce  would  be  valid  if  it  rested  upon  the 
common  law  of  the  state  and  is  no  less  valid  because  made  by  its  state 
statute.  Western  Union  Tel.  Co.  v.  Commercial  Milling  Co.,  218  U. 
S.  406,  31  Sup.  Ct.  59,  54  L.  ed.  1088. 

Legislature  may  confer  on  the  Commission  power  to  establish  and 
change  rates.  Eailroad  Commission  v.  Alabama  &  Central  Ga.  R.  Co., 
170  Fed.  225,  239;  Saratoga  Springs  v.  Saratoga  Gas,  Elee.  Light  & 
Power  Co.,  191  N.  Y.  123,  83  N.  E.  693. 

The  Railroad  Commission  has  jurisdiction  over  the  legal  rates  within 
the  state  notwithstanding  the  fact  that  the  railroad,  in  making  up  its 
through  schedule,  takes  the  sum  of  the  local  rates  in  each  state.  Louis- 
ville &  N.  R.  Co.  v.  Silor,  186  Fed.  176. 

Rate  charged  by  carrier  being  per  se  reasonable  does  not  prevent  it 
from  being  at  the  same  time  unlawful,  where  relatively  unjust  by  rea- 
son of  undue  preference  afforded  to  one  locality  or  undue  prejudice 
resulting  to  another  locality,  even  though  the  higher  rate  is  not  in 
itself  excessive.  Portland  R.  L.  &  P.  Co.  v.  Railroad  Commission,  56 
Or.  468,  109  Pac.  273. 

The  police  power  to  regulate  railroads  and  the  private  right  of  owner- 
ship of  such  property  coexist,  and  do  not  the  one  destroy  the  other; 
hence,  the  right  of  ownership  of  railway  property,  like  other  property 
rights,  finds  protection  in  constitutional  guaranties,  and,  therefore, 
wherever  the  power  of  regulation  is  exerted  in  such  an  arbitrary  and 
unreasonable  way  as  to  cause  it  to  be  in  effect  not  a  regulation,  but  an 
infringement  upon  the  right  of  ownership,  such  an  exertion  of  power 
is  void  because  repugnant  to  the  due  process  and  equal  protection  clauses 
of  the  Fourteenth  Amendment.  Atlantic  Coast  Line  R.  Co.  v.  North 
Carolina  Corporate  Commission,  206  U.  S.  1,  27  Sup.  Ct.  585,  51  L.  ed. 
933,  citing  Stone  v.  Farmers'  Loan  &  T.  Co.,  116  U.  S.  307,  331,  6  Sup. 
Ct.  334,  388,  1191,  29  L.  ed.  636,  644;  Chicago,  M.  &  St.  P.  R.  Co. 
v.  Minnesota,  134  U.  S.  418,  455,  10  Sup.  Ct.  462,  702,  33  L.  ed.  970, 
979,  3  Int.  Com.  Rep.  209;  Chicago  &  G.  T.  R.  Co.  v.  Wellman,  143 
U.  S.  339,  344,  12  Sup.  Ct.  400,  36  L.  ed.  176,  179;  Reagan  v.  Farmers' 
Loan  &  T.  Co.,  154  U.  S.  362,  399,  14  Sup.  Ct.  1047,  38  L.  ed.  1014, 
1024,  4  Int.  Com.  Rep.  560;  St.  Louis  &  S.  F.  R.  Co.  v.  Gill,  156  U.  S. 
649, '657,  15  Sup.  Ct.  484,  39  L.  ed.  567,  570;  Chicago,  B.  &  Q.  R.  Co. 
v.  Chicago,  166  U.  S.  226,  241,  17  Sup.  Ct.  581,  41  L.  ed.  979,  986;  Smyth 
v.  Ames,  169  U.  S.  466,  512,  18  Sup.  Ct.  418,  42  L.  ed.  819,  838;  Chi- 
cago, M.  &  St.  P.  R.  Co.  v.  Tompkins,  176  U.  S.  167,  172,  20  Sup.  Ct. 
336,  44  L.  ed.  417,  420;  Minneapolis  &  St.  L.  R.  Co.  v.  Minnesota,  186 
U.  S.  257,  22  Sup.  Ct.  900,  46  L.  ed.  1151;  Chicago,  B.  &  Q.  R.  Co.  v. 
Illinois,  200  U.  S.  561,  592,  26  Sup.  Ct.  341,  50  L.  ed.  596,  609. 


§  206         POWERS  AND  DUTIES  OP  RAILROAD   COMMISSION.  167 

The  Railroad  Commission  Act  of  the  state  of  Oregon  (Laws  1907,  p. 
67)  contains  many  features  of  regulation  quite  in  common  with  the 
Interstate  Commerce  Act  of  Congress  (Act  February  14,  1887,  c.  104, 
24  Stats,  at  Large,  379,  U.  S.  Comp.  Stats.  1901,  p.  3154),  and  amend- 
ments (1  Supp.  U.  S.  Rev.  Stats.,  pp.  529,  684,  891),  the  signal  differ- 
ence between  the  two  acts  being  that  in  the  former  the  Commission  is 
empowered  to  fix  the  rates,  which,  when  fixed,  are  made  prima  facie  rea- 
sonable and  just,  and,  if  contested  by  the  interested  parties,  the 
burden  is  cast  upon  such  parties  to  institute  the  proper  proceeding  or 
action,  and  to  overcome  the  prima  facie  case  by  proof  to  the  contrary; 
while  under  the  Oregon  Act,  the  Commission  orders  and  directs  changes 
to  be  made  in  rates,  if  found  to  be  unreasonable  and  unjust,  and  the 
rates  named  by  the  Commission  are  deemed  to  be  prima  facie  reason- 
able and  just,  and  if  the  interested  parties  refuse  to  obey  the  orders  of 
the  Commission  naming  the  rates,  the  Commission  is  authorized  to  en- 
force obedience  by  a  suit  in  the  federal  courts;  in  which  suit  the  party 
contesting  has  the  burden  of  overcoming  the  prima  facie  case  of  the 
reasonableness  of  the  rates  directed  by  the  Commission  for  adoption, 
and  must  do  so  in  its  defense,  or  the  Commission's  order  stands.  Oregon 
R.  &  Nav.  Co.  v.  Campbell,  173  Fed.  957. 

In  this  case  no  question  was  raised  as  to  the  constitutional  authority 
or  powers  of  the  Commission  to  fix  such  rates,  or  as  to  whether  in  fixing 
such  rates  it  exercised  a  legislative,  judicial  or  administrative  function — 
it  being  apparently  conceded  that  those  powers  were  adequate  in  re- 
spect to  making  rates,  in  so  far  as  they  were  reasonable.  Oregon  B.  & 
Nav.  Co.  v.  Campbell,  173  Fed.  957. 

2.     Charter  Rights. 

Railroad's  right  to  charge  and  collect  reasonable  fares,  though  a  fixed 
right,  is  a  right  that  is  subject  to  regulation  under  the  exercise  of  tho 
police  power  of  the  state  for  the  public  welfare.  Portland  R.  L.  &  P. 
Co.  v.  Railroad  Commission,  56  Or.  468,  105  Pac.  709;  Bullard  v.  Mon- 
tana Pac.  R.  Co.,  10  Mont.  168,  25  Pac.  120,  11  L.  R.  A.  246. 

Railroad  company,  incorporated  under  statute  giving  it  "power  to 
collect  such  tolls  for  the  transportation  of  persons  and  property  as 
it  may  prescribe,"  does  not  constitute  a  contract  between  the  state  and 
the  railroad  company,  the  obligation  of  which  cannot  be  impaired  by 
subsequent  legislation.  State  v.  So.  Pac.  Co.,  23  Or.  424,  31  Pac.  961, 
approving  Wells,  Fargo  Co.  v.  Oregon  R.  &  Nav.  Co.,  8  Saw.  600,  15 
Fed.  561;  Ex  parte  Koehler,  11  Saw.  37,  27  Fed.  529. 

S.  Method  of  Procedure. 
Commission  empowered  to  determine  first  whether  a  rate  or  service 
complained  of  is  unreasonable,  and  until  the  fact  that  it  is  unreason- 
able is  established,  no  further  action  by  the  Commission  is  authorized. 
Minneapolis,  St.  P.  &  Ste.  Marie  R.  Co.  v.  Railroad  Commission  (dis. 
op.  Dodge,  J.),  136  Wis.  146,  116  N.  W.  915. 


168  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  208 

After  a  finding  by  the  Commission  that  the  rate  of  service  com- 
plained of  is  unreasonable,  it  is  the  duty  of  the  Commission  to  proceed 
to  ascertain  and  declare  what  is  the  reasonable  rate  or  service,  which 
is  the  maximum  rate  or  miuimum  service  consistent  with  reason.  Min- 
neapolis, St.  P.  &  Ste.  M.  R.  Co.  v.  Kailroad  Commission  (dis.  op. 
Dodge,  J.),  136  Wis.  146,  116  N.  W.  915. 

Eeasonable  service  or  rate,  Commission  empowered  to  fix  and  order, 
for  substitute  for  the  service  or  rate  complained  of  in  each  case.  The 
minimum  service  or  the  maximum  rate  which  is  reasonable  is  the  thing 
to  be  determined.  Minneapolis,  St.  P.  &  Ste.  M.  R.  Co.  v.  Railroad 
Commission  (cone.  op.  Marshall  &  Bashford,  JJ.),  136  Wis.  146,  116 
N.  W.  915. 

The  Commission  is  not  given  power  or  discretion  to  fix  one  of  sev- 
eral rates  either  of  which  would  be  just  and  reasonable,  and  this  being 
the  case,  there  is  no  delegation  to  the  Commission  of  pure  legislative 
power.  See  Minneapolis,  St.  P.  &  Ste.  Marie  R.  Co.  v.  Railroad  Com- 
mission, 136  Wis.   146,  116  N.  W.  915. 

Selection  and  fixing  of  any  other  than  the  maximum  rate  or  mini-  ^ 
mum  service  necessarily  involved  is  not  merely  the  ascertainment  of  a 
fact  or  condition,  but  also  the  exercise  of  choice  or  discretion  passed 
on  consideration  of  policy  and  expediency,  the  power  to  exercise  which 
is  purely  legislative  and  cannot  be  delegated  to  a  Commission.  Minne- 
apolis, St.  P.  &  Ste.  M.  R.  Co.  v.  Railroad  Commission  (dis.  op.  Dodge, 
J.),  136  Wis.  146,  116  N.  W.  915. 

4.     Basis  of  Computation. 

Rates  fixed  by  the  state  for  transportation  of  commerce  between 
points  located  within  the  state  are  wholly  within  the  power  of  the  state. 
See  Louisville  &  N.  R.  Co.  v.  Kentucky,  183  U.  S.  503,  22  Sup.  Ct.  95, 
46  L.  ed.  298. 

"State  cannot  justify  unreasonably  low  rates  for  domestic  transpor- 
tation considered  alone  upon  the  ground  that  the  carrier  is  earning  large 
profits  on  its  interstate  business,  over  which,  so  far  as  rates  are  con- 
cerned, the  state  has  no  control."  Smyth  v.  Ames,  169  U.  S.  466,  18 
Sup.  Ct.  418,  42  L.  ed.  819. 

Carriers  cannot  justify  unreasonably  high  rates  on  domestic  business 
upon  the  ground  that  it  will  be  able  in  that  way  only  to  meet  losses  in 
its  interstate  business.  Smyth  v.  Ames,  169  U.  S.  466,  18  Sup.  Ct.  418, 
42  L.  ed.  819. 

Actual  value  of  railroad  is  basis  on  which  Railroad  Commission  may 
fix  rates,  and  not  the  bonded  indebtedness,  capital  stock  and  current 
indebtedness,  unless  it  be  shown  that  the  value  of  the  road  equals  such 
outstanding  indebtedness.     State  v.   So.   Pac.   Co.,  23   Or.   424,   31   Pac. 

960. 

Bonded  indebtedness,  capital  stock  and  current  expenses  are  not  to 
be  taken  into  consideration  by  Railroad  Commission  in  fixing  rates, 
unless  it  be  shown  that  the  value  of  the  road  equals  such  outstanding 
indebtedness.     State  V.  So.   Pac.   Co.,   23   Or.  424,  31   Pac.  960. 


§  206         POWERS  AND  DUTIES  OF  RAILROAD  COMMISSION.  169 

The  question  whether  the  amount  of  compensation  accruing  to  a  p  ib- 
Hc  utility  from  rates  fixed,  over  and  above  expenditures  for  current 
year,  can  be  properly  considered  and  allowed  in  fixing  such  rates  at  a 
reasonable  compensation,  is  a  question  of  fact,  depending  upon  all  the 
circumstances  of  the  case,  to  be  determined  by  the  body  fixing  the  rates 
in  the  first  instance,  and  the  jurisdiction  of  a  court  on  review  is  lim- 
ited to  a  review  of  the  action  of  the  body  so  fixing  the  rates.  Red- 
lands  L.  &  C.  D.  Co.  v.  City  of  Redlands,  121  Cal.  312,  53  Pac.  791. 

"Estimate  placed  by  party  upon  the  value  of  his  own  service  or  of 
his  property  is  always  sufficient,  against  him,  to  establish  the  real  value; 
but  it  has  augmented  probative  force  and  is  almost  conclusive  against 
him,  when  he  has  adopted  it  in  a  long-continued  and  extensive  course  of 
business  dealing  and  while  it  is  used  as  a  fixed  and  notorious  standard 
for  the  information  of  the  public."  Menacho  v.  Ward,  27  Fed.  529, 
532. 

5.     Opportunity  to  be  Heard. 

Opportunity  to  be  heard  on  the  fixing  of  rates  is  not  denied  where 
there  are  conferences  between  the  officers  of  the  public  utility  whose 
rates  are  fixed  and  the  board  or  body  fixing  the  rates,  although  such 
officers  are  not  allowed  to  be  present  at  the  final  meeting  when  the 
rates  are  determined  and  fixed.  San  Diego  L.  &  T.  Co.  v.  National 
City,  174  U.  S.  739,  19  Sup.  Ct.  804,  43  L.  ed.  1154. 

As  to  notice  and  opportunity  on  fixing  or  charging  rates,  see  post, 
§321. 

6.     In  Force  How  Long. 

Rates  established  by  Railroad  Commission  remain  in  force  until  a 
change  in  rates  is  published  as  in  the  act  provided  for.  Hooper  v. 
Chicago  M.  &  St.  P.  R.  Co.,  91  Iowa,  639,  60  N.  W.  487. 

7.  Unreasonable  Bates. 
Fixing  and  enforcement  by  Railroad  Commission  of  unjust  and  un- 
reasonable rates  for  transportation  by  railroad  companies  is  an  uncon- 
stitutional denial  of  the  equal  protection  of  the  laws,  because  a  cor- 
poration cannot  be  required  to  use  its  property  for  the  benefit  of  the 
public  without  receiving  a  just  compensation  in  return  for  the  services 
rendered.  Portland  R.  L.  &  P.  Co.  v.  Railroad  Commission,  56  Or. 
468,  109  Pac.  273. 

II.     Rates  Fixed  Prima  Facie  Reasonable. 

Board  of  Railroad  Commissioners  is  authorized  to  make  a  schedule  of 
rates,  and  their  schedule  is  merely  given  the  force  and  effect  of  prima 
facie  evidence  as  to  the  reasonableness  of  the  rates,  in  a  suit  regarding 
thereto.     Chicago,  B.  &  Q.  R.  Co.  v.  Jones,  149  111.  361,  37  X.  E.  24  7. 

When  a  maximum  rate  is  established  by  the  R-ailroad  Commission, 
the  rates  fixed  by  the  directors  of  a  railroad  corporation  must  conform 
to  such  commission  rates,  otherwise  they  are  repugnant  to  the  laws  of 
the  state.     Chicago,  B.  &  Q.  R.  Co.  v.  Jones,  149  111.  361,  37  N.  E.  247. 


170  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  206 

Provision  of  the  act  that  the  fixing  of  rates  and  orders  entered  by 
the  Commission  shall  be  prima  -facie  evidence  of  the  reasonableness 
of  such  rates,  but  enacts  a  rule  of  evidence  and  is  quite  within  the 
general  power  of  the  legislature.  Mobile,  J.  &  K.  C.  R.  Co.  v.  Tur- 
nipseed,  219  U.  S.  35,  31  Sup.  Ct.  136,  55  L.  ed.  78.  See  Adams  v.  New 
York,  192  U.  S.  585,  24  Sup.  Ct.  372,  48  L.  ed.  575;  People  v.  Cannon, 
139  N.  Y.  32,  34  N.  E.  759,  36  Am.  St.  Rep.  668;  Home  v.  Memphis  & 
O.  R.  Co.,  41  Tenn.  (1  Cold.)  72;  Meadowcroft  v.  People,  163  HI.  56, 
45  N.  E.  303,  54  Am.  St.  Rep.  447,  35  L.  R.  A.  176;  Com.  v.  Williams, 
72  Mass.  (6  Gray)  1;  State  v.  Thomas,  144  Ala.  77,  40  So.  271,  113 
Am.  St.  Rep.  17,  6  Am.  &  Eng.  Ann.  Cas.  744,  2  L.  R.  A.,  N.  S.,  1011. 

III.    Passes  and  Free  Transportation. 

Regulation  invalidating  existing  contract  for  free  transportation  by 
a  carrier  is  valid.  Louisville  &  N.  R.  Co.  v.  Mottley,  219  U.  S.  467, 
31  Sup.  Ct.  265,  55  L.  ed.  297. 

Regulation  preventing  carrier  from  issuing  annual  passes  for  life  in 
consideration  of  release  of  claim  for  damages  is  valid  although  it  has 
the  effect  to  render  nugatory,  in  that  it  is  no  longer  enforceable,  a  con- 
tract for  such  passes  theretofore  made  by  a  carrier.  Louisville  &  N. 
R.  Co.  v.  Mottley,  219  U.  S.  467,  31  Sup.  Ct.  265,  55  L.  ed.  297. 

Regulations  preventing  railroad  company  from  issuing  free  pass  for 
life  in  consideration  of  release  of  claim  for  damages  is  valid.  Louis- 
ville &  N.  R.  Co.  v.  Mottley,  219  U.  S.  467,  31  Sup.  Ct.  265,  55  L.  ed. 
297. 

IV.    Existing  Contracts  for  Transportation. 

Contract  for  transportation  made  prior  to  the  passage  of  the  Rail- 
road Commission  Act  is  impliedly  made  subject  to  the  reservation  in 
the  constitution  of  the  police  power  in  the  state  to  regulate.  Such  a 
contract  is  not  a  vested  right  protected  by  article  XI,  section  2,  of 
the  Oregon  Constitution  (before  its  amendment  in  1905),  and  does  not 
impair  the  obligation  of  the  contract  under  article  I,  section  21  of  the 
Oregon  Constitution.  Portland  R.  L.  &  P.  Co.  v.  Railroad  Commission, 
56  Or.  468,  105  Pac.  713. 

V.    Reasonable  Regulations — Interstate  Commerce. 

State  regulation  of  foreign  oil  company,  in  absence  of  a  congressional 
act  covering  the  subject  matter,  is  valid.  Standard  Oil  Co.  of  Ken- 
tucky v.  Tennessee,  217  U.  S.  413,  30  Sup.  Ct.  543,  54  L.  ed.  87. 

Enforcement  of  state  regulations  forbidding  discrimination  in  rates 
in  case  of  articles  of  a  like  kind  carried  for  different  distances  over 
the  same  line  may  somewhat  affect  commerce  generally,  but  such  a  result 
is  too  remote  and  indirect  to  be  regarded  as  an  interference  with  inter- 
state commerce;  the  interference  with  the  commercial  powers  of  the 
general  government,  to  be  unlawful,  must  be  direct  and  not  the  mere 
incidental  effect  of  enforcing  police  power  of  a  state.  Louisville  &  N. 
R.  Co.  v.  Kentucky,  183  U.  S.  502,  22  Sup.  Ct.  95,  46  L.  ed.  298.  See 
New  York,  L.  E.  &  W.  R.  Co.  v.  Pennsylvania,  158-  U.  S.  431,  15  Sup. 


§  206         POWERS  AND  DUTIES  OF  RAILROAD  COMMISSION.  171 

Ct.  896,  39  L.  ed.  1043;   Henderson  Bridge  Co.  v.  Kentucky,  166  U.  S. 
150,  17  Sup.  Ct.  532,  41  L.  ed.  953. 

Regulation  requiring  unloading  of  livestock  during  transit,  and  the 
number  of  penalties  attached  for  failure  to  comply  with  the  regulation: 
See  Baltimore  &  O.  R.  Co.  v.  United  States,  220  U.  S.  94,  31  Sup.  Ct. 
368,  55  L.  ed.  384. 

VI.     Regulation  Affixing  Penalty. 

An  act  making  it  penal  for  any  railroad  company  to  extort  unrea- 
sonable charges  for  the  transportation  of  passengers  or  the  carrying  of 
freight  or  to  make  unjust  discrimination  is  not  void  for  uncertainty  in 
defining  the  offense  by  reason  of  the  power  of  the  Commission  to  impose 
the  penalties  therein  mentioned.  Chicago,  B.  &  Q.  R.  Co.  v.  Jones,  149 
HI.  361,  37  N.  E.  247. 

Taking  higher  rates  than  those  fixed  by  the  Railroad  Commission  are 
not  subject  to  the  penalties  of  the  statute,  upon  making  proof  that  the 
rates  were  fair  and  reasonable.  Chicago,  B.  &  Q.  R.  Co.  v.  Jones,  149 
111.  361,  37  N.  E.  247. 

State  regulations  affixing  a  penalty  for  negligent  failure  of  telegraph 
company  to  transmit,  within  the  state,  message  received  at  an  office 
within  the  state  for  the  purpose  of  transmission  to  an  addressee  in 
another  state  is  a  valid  exercise  of  the  police  power  of  the  state,  in  the 
absence  of  any  legislation  by  Congress  covering  the  subject.  Western 
Union  Tel.  Co.  v.  Crovo,  220  U.  S.  364,  31  Sup.  Ct.  399,  55  L.  ed.  498. 

The  repeal  of  an  administrative  order  made  by  the  Corporation  Com- 
mission, providing  for  the  enforcement  of  certain  penalties  against 
passengers  who  board  trains  without  purchasing  tickets,  is  not  appealable. 
St.  Louis  &  S.  F.  R.  Co.  v.  State,  28  Okl.  802,  115  Pac.  874. 

VII.     Water  Rates. 

It  is  competent  for  a  state  to  declare  that  the  use  of  water  appro- 
priated for  sale,  rental,  or  distribution  shall  be  a  public  use,  subject 
to  public  regulation  and  control,  and  for  the  legislature  to  confer  upon 
a  body  or  board  power  to  fix  rates  of  compensation  for  use  of  the  water 
supply;  but  this  power  thus  conferred  cannot  be  exercised  arbitrarily 
and  without  reference  to  what  is  just  and  reasonable  as  between  the 
public  and  the  individual  or  company  supplying  the  water  for  general 
use.  San  Diego  L.  &  T.  Co.  v.  National  City,  174  U.  S.  739,  19  Sup. 
Ct.  804,  43  L.  ed.  1154.  See  Cotting  v.  Kansas  City  Stock  Yards  Co. 
(Cotting  v.  Godard),  183  U.  S.  85,  22  Sup.  Ct.  30,  46  L.  ed.  99;  Stan- 
islaus County  v.  San  Joaquin  &  K.  River  Canal  &  Irr.  Co.,  192  U.  S. 
210,  24  Sup.  Ct.  241,  48  L.  ed.  412;  Madisonville  Traction  Co.  v.  St. 
Bernard  Min.  Co.,  196  U.  S.  252,  25  Sup.  Ct.  251,  49  L.  ed.  467;  In  re 
New  York  &  W.  W.  Co.,  98  Fed.  716. 

As  to  regulation  of  water  rates,  see  notes,  21  L.  R.  A.  519;  33  L. 
R.  A.   181;    12  L.   R.   A.,  N.   S.,   711. 

Contract  made  by  a  municipal  corporation,  umler  authority  of  stat- 
ute,  for  a   reasonable   number   of   years,   for   a  supply   to   the   city   of 


172  CALIFORNIA   PUBLIC   UTILITIES   ACT.  §  206 

water,  with  a  provision  for  the  regulation  of  water  rates,  including  a 
limitation  not  to  reduce  the  then  existing  rates,  form  a  valid  and  enforce- 
able contract.  Los  Angeles  v.  Los  Angeles  City  Water  Co.,  177  U.  S. 
558,  20  Sup.  Ct.  736,  44  L.  ed.  886.  See  Freeport  Water  Co.  v.  Free- 
port,  180  U.  S.  593,  21  Sup.  Ct.  493,  45  L.  ed.  686;  Detroit  v.  Detroit 
Citizens'  Street  R.  Co.,  184  U.  S.  382,  22  Sup.  Ct.  410,  46  L.  ed.  605; 
Vicksburg  Water  Works  Co.  v.  Vicksburg,  185  U.  S.  82,  22  Sup.  Ct. 
585,  46  L.  ed.  816;  Riverside  &  A.  R.  Co.  v.  Riverside,  118  Fed.  741; 
Denver  v.  Hubbard,  17  Colo.  App.  367,  68  Pac.  993;  Tampa  v.  Tampa 
Water  Works  Co.;  45  Fla.  623,  34  So.  631;  Reed  v.  Anoka,  85  Minn. 
297,  88  N.  W.  931;  Knoxville  v.  Knoxville  Water  Co.,  107  Tenn.  680, 
64  S.  W.  1075,  61  L.  R.  A.  897. 

As  to  right  to  regulate  rates  where  water  is  furnished  by  contract, 
see  Owensboro  v.  Ownesboro  Water  Works  Co.,  191  U.  S.  358,  24  Sup. 
Ct.  82,  48  L.  ed.  217. 

Contract  providing  rates  should  not  be  changed  for  thirty  years  held 
to  be  unauthorized  under  Illinois  Act,  April  9,  1872.  Freeport  Water 
Co.  v.  Freeport,  180  U.  S.  587,  21  Sup.  Ct.  493,  45  L.  ed.  679;  Danville 
Water  Co.  v.  Danville,  180  U.  S.  619,  21  Sup.  Ct.  505,  45  L.  ed.  696. 
See  Rogers  Park  Water  Co.  v.  Fergus,  180  U.  S.  628,  21  Sup.  Ct.  490, 
45  L.  ed.  705;  Omaha  Water  Co.  v.  Omaha,  147  Fed.  6,  77  C.  C.  A. 
272;  Tampa  v.  Tampa  Water  Co.,  45  Fla.  623,  34  So.  631;  Davenport 
Gas  &  E.  Co.  v.  Davenport,  124  Iowa,  31,  98  N.  W.  892. 

Contract  fixing  maximum  water  rates  to  private  consumers  for  a  period 
of  thirty  years  will  be  binding  unless  so  grossly  unreasonable  as  to  sug- 
gest fraud  or  corruption,  and,  as  such,  is  protected  against  impairment 
by  the  contract  clause  of  the  federal  constitution.  See  Vicksburg  v. 
Vicksburg  Water  Works  Co.,  206  U.  S.  496,  27  S.  W.  762,  55  L.  ed.  1155. 

Whether  rates  to  be  charged  by  a  water  company,  fixed  by  municipal 
ordinance  or  otherwise,  are  reasonable  or  unreasonable  is  a  judicial 
question,  and  the  court  may  invoke  the  federal  court  to  determine 
whether  the  fixing  of  such  rates  deprives  the  company  of  its  property 
without  due  process  of  law.  Spring  Valley  Water  Works  v.  San  Fran- 
cisco,  165   Fed.   657. 

In  determining  the  reasonableness  or  unreasonableness  of  rates  fixed 
by  municipalities  or  a  board,  the  expense  of  procuring  sources  of  sup- 
ply of  water  largely  in  excess  of  present  needs  is  not  to  be  taken  into 
consideration  in  determining  the  value  of  the  property,  such  source  of 
supply  not  being  at  present  used  or  useful  in  the  business  of  the 
company  nor  necessary  for  the  wants  of  the  people.  Spring  Vallev 
Water  Works  v.   San   Francisco,   192  Fed.   137. 

For  the  purpose  of  determining  whether  rates  to  be  charged  by  a  water 
company,  as  fixed,  are  reasonable  or  confiscatory  in  their  nature,  the 
value  of  the  property  of  the  water  company  at  the  time  of  the  inquiry, 
and  that  property  only,  is  to  be  considered  which  was  then  being  used 
and  useful  in  the  business  of  supplying  water.  Spring  Valley  Water 
Works   v.   San   Francisco,    192   Fgd.    137. 


§  206         POWERS  AND  DUTIES  OF   RAILROAD  COMMISSION.  173 

In  determining  whether  water  rates  fixed  are  reasonable  or  unreason- 
able, it  is  proper  to  consider  the  value  of  the  property  of  the  water 
company,  and  that  value  consisted  of  (1)  the  cost  of  construction,  (-) 
the  amount  expended  in  permanent  improvements,  (3)  the  amount  of 
the  market  value  of  the  stocks  and  bonds  of  the  company  issued  and 
outstanding,  (4)  the  present  cost  of  construction  as  compared  with  the 
original  cost,  (5)  the  probable  earning  capacity  of  the  property  under 
the  rate  prescribed,  (6)  the  amount  of  money  required  to  meet  oper- 
ating expenses,  (7)  the  cost  to  obtain  water  equal  in  quantity  and 
quality  to  the  supply  at  that  time  furnished  from  the  next  most  avail- 
able source  of  supply,  (8)  the  depreciation  of  that  portion  of  the  plant 
of  the  company  which  is  worn  by  use  or  the  action  of  the  elements 
or  its  value  is  depreciated  by  newer,  cheaper,  and  more  efficient  appli- 
ances and  machinery,  (9)  the  franchise  of  the  plant,  and  (10)  the 
fact  that  the  company  is  a  going  concern.  Spring  Valley  Water  Works 
v.   San   Francisco,   192   Fed.    137. 

The  basis  of  calculation  for  determining  whether  rates  to  be  charged 
by  a  water  company,  fixed  by  a  municipality,  are  just  and  reasonable, 
is  the  reasonable  value  of  the  property  necessarily  employed  in  ren- 
dering the  probable  service  required  of  such  company  and  the  fair  value 
to  the  public  of  the  service  rendered;  and  in  determining  this  question 
the  amount  and  value  of  the  bonds  and  stocks  of  the  corporation,  if 
not  in  excess  of  the  real  value  of  the  property,  may  properly  be  con- 
sidered.    Spring  Valley  Water  Works  v.   San  Francisco,   124  Fed.  574. 

The  franchise  of  a  water  company  in  California  is  an  element  to 
be  considered  in  determining  the  value  of  the  corporate  property 
necessarily  employed  in  the  service  of  supplying  water  to  a  city,  etc.; 
and  so,  also,  is  the  enhanced  value  of  the  property  by  the  reason  of  the 
fact  that  the  company  has  an  established  business  and  is  a  going 
concern.     Spring  Valley  Water  Works  v.  San  Francisco,  124  Fed.   574. 

Ordinance  reducing  rate  to  be  charged  by  water  company  to  privato 
consumers  so  that  the  annual  net  earnings  would  not  exceed  four  and 
four-tenths  per  cent  on  the  value  of  the  property  necessarily  employed 
in  the  service,  or  three  and  three-tenths  per  cent  on  its  stock  after 
deducting  its  fixed  charges,  was  held  to  be  unconstitutional  and  in- 
valid.    Spring  Valley  Water  Works  v.  San  Francisco,  124  Fed.  574. 

In  fixing  rates  of  water  charges,  losses  from  distribution  of  water 
to  consumers  outside  of  city  cannot  be  taken  into  consideration.  San 
Diego  L.  &  T.  Co.  v.  National  City,  174  U.  S.  739,  19  Sup.  Ct.  804,  43 
L.  ed.  1154. 

Price  at  which  a  waterworks  plant  was  sold  under  foreclosure  is  evi- 
dence which  may  be  taken  into  consideration  in  fixing  and  regulating 
water  rates,  in  estimating  and  determining  the  value  of  the  plant  on 
which  a  fair  return  is  to  be  secured.  San  Diego  L.  &  T.  Co.  v.  Jasper, 
189  U.  S.  439,  23  Sup.  Ct.  571,  47  L.  ed.  892. 

Valuation  for  purpose  of  taxation  may  be  taken  into  consideration 
in  determining  reasonableness  of  rates  fixed,  especially  where  such  val- 
uation was  shown  to  be  by  officers  of  the  public  utilities  company.    San 


174  CALIFORNIA   PUBLIC   UTILITIES   ACT.  §  206 

Diego  L.  &  T.  Co.  v.  Jasper,  189  U.  S.  439,  23  Sup.  Ct.  571,  47  L.  ed. 
892. 

Under  a  statute  providing  that  water  appropriated  for  sale,  rental,  or 
distribution  is  a  public  use,  and  the  collection  of  rates  of  compensa- 
tion for  such  service  a  franchise  which  cannot  be  exercised  except  by 
the  authority  of  and  in  the  manner  prescribed  by  law,  the  legislature 
is  authorized  to  provide  for  fixing  the  rates  to  be  charged,  and  an  irri- 
gation company  has  no  authority  to  make  a  distinction  between  its  cus- 
tomers, supplying  some  with  low  rates,  and  attacking  the  validity  of 
the  maximum  rates  fixed  by  the  authorities  under  the  statute,  on  the 
ground  that,  as  applied  to  those  other  customers,  the  rates  fixed  will  not 
yield  a  reasonable  return  on  the  investment,  but  will  amount  to  a  tak- 
ing of  its  property  without  compensation.  The  rule  for  determining 
the  reasonableness  of  rates  is  to  consider  the  rates  fixed  applicable  to 
all  the  customers.  Boise  City  Irr.  &  L.  Co.  v.  Clark,  131  Fed.  415,  65 
C.  C.  A.  406. 

Maximum  rates  fixed  pursuant  to  statute  do  not  deprive  the  com- 
pany of  its  property  without  compensation  because  the  rate  as  fixed  will 
not  produce  sufficient  revenue  above  expenses  and  fixed  charge  to  pay  a 
reasonable  income  on  the  money  invested,  in  those  cases  where  the  plant 
was  constructed  on  a  large  scale  and  at  a  greater  outlay  than  was  neces- 
sary to  supply  the  present  needs  of  customers,  and  with  the  purpose  of 
supplying  a  larger  area  of  territory  and  a  greater  number  of  custom- 
ers. Boise  City  Irr.  &  L.  Co.  v.  Clark,  131  Fed.  415,  65  C.  C.  A.  406. 
See  San  Diego  L.  &  T.  Co.  v.  Jasper,  189  U.  S.  439,  446,  23  Sup.  Ct. 
571,  47  L.   ed.  892. 

VIII.     Irrigation. 

In  fixing  the  rates  to  be  charged  by  public  utility — such  as  the  rates 
for  furnishing  of  water  by  a  water  company  to  the  inhabitants  of  a 
municipality  for  domestic  use — the  public  utilities  company  is  not  en- 
titled to  be  reimbursed  from  the  income  derived  from  the  rates  fixed 
for  interest  upon  its  indebtedness,  nor  for  depreciation  of  its  plant, 
aside  from  the  amount  requisite  for  its  maintenance  and  repair  during 
the  year.  Eedlands  L.  &  C.  D.  Water  Co.  v.  City  of  Redlands,  121  Cal. 
312,  53  Pac.  791.  See  San  Diego  Water  Co.  v.  San  Diego,  118  Cal. 
556,  50  Pac.  633,  62  Am.  St.  Rep.  261. 

Irrigation  rates  established  are  not  necessarily  unreasonable  because 
they  will  yield  only  a  full  return  on  the  total  value  of  the  plant  when  the 
water  company  shall  serve  the  entire  area  which  its  system  will  supply, 
San  Diego  L.  &  T.  Co.  v.  Jasper,  189  U.  S.  439,  23  Sup.  Ct.  571,  47 
L.  ed.  892,  affirming  110  Fed.  702;  and  approved  in  Boise  City  Irr.  & 
L.  Co.  v.  Clark,  131  Fed.  415,  422,  65  C.  C.  A.  339  (upholding  rates  fixed 
where  plant  constructed  on  large  scale  and  necessary  for  present  use)  ; 
Brunswick  Water  Dist.  v.  Maine  Water  Co.,  99  Me.  380,  59  Atl.  540 
(determining  valuation  of  public  service  corporation). 

Rates  established  for  water  furnished  for  irrigation  purposes  are  not 
necessarily  unreasonable  because  they  will  yield  a  full  return  on  the 
total  value  of  the  plant  only  when  the  water  company  shall  serve  the 


§  206         POWERS  AND  DUTIES  OF  RAILROAD  COMMISSION.  175 

entire  area  which  its  system  will  supply.  San  Diego  L.  &  T.  Co.  v. 
Jasper,  189  U.  S.  439,  23  Sup.  Ct.  571,  47  L.  ed.  892.  See  Stanislaus 
County  v.  San  Joaquin  &  K.  River  Irr.  Co.,  192  U.  S.  215,  24  Sup.  Ct. 
241,  48  L.  ed.  414;  Boise  City  Irr.  &  L.  Co.  v.  Clark.  131  Fed.  422,  65 
C.  C.  A.  406;  Brunswick  F.  T.  W.  Dist.  v.  Maine  Water  Co.,  99  Me. 
380,  59  Atl.  537. 

IX.     Orders. 

Orders  and  rules  of  the  Railroad  Commission,  where  wholly  legislative 
in  their  nature,  are  unenforceable,  because  the  power  to  make  such 
orders  and  rules  cannot  be  delegated  by  the  legislature  to  the  Commis- 
sion. See  Minneapolis,  St.  P.  &  Ste.  Marie  R.  Co.  v.  Railroad  Commis- 
sion,  136  Wis.   146,   116   N.  W.   915. 

Order  issued  by  Commission  respecting  the  keeping  open  of  depots 
and  stations  and  the  receipt  of  passengers  therein,  may,  in  a  par- 
ticular case,  result  in  hardship  or  injury,  but  this  is  no  criterion  by 
which  to  test  the  reasonableness  of  the  regulation ;  if  it  conduces  to 
the  interest  of  the  railway  company  and  works  no  hardship  to  the 
traveling  public,  it  must  be  considered  as  reasonable.  Smith  v.  Sea- 
board Airline  R.   Co.    (Ga.   App.),   73   S.   E.  523. 

Order  of  Railroad  Commission  directing  electric  rr~  1  to  cease  an  un- 
lawful discrimination  between  passengers  from  different  localities 
served  by  it  and  directing  that  equal  transfer  privileges  be  supplied 
may  be  complied  with  by  giving  transfers  to  all  or  by  refusing  to  give 
transfers  to  any;  euch  order  of  the  Commission  is  not  a  command  that 
transfers  be  given.  Portland  R.  L.  &  P.  Co.  v.  Railroad  Commission,  56 
Or.  468,   109  Pac.  273. 

Refusal  of  order  of  Commission  does  not  ascertain  or  establish  the  point 
of  reasonableness,  but  leaves  it  undisclosed  and  the  former  rates  to 
stand,  requiring  the  commissioners  to  make  another  trial  to  find  a  rate 
that  is  reasonable.  Minneapolis,  St.  P.  &  Ste.  M.  R.  Co.  v.  Railroad 
Commission,   136  Wis.   146,   165,   116   N.  W.   915. 

Confiscatory  order  must  be  such  as  to  deprive  the  railroad  of  a  fair 
rate  upon  the  value  of  its  property,  not  merely  one  which  reduces  former 
rates  or  charges.  Minneapolis,  St.  P.  &  Ste.  M.  R.  Co.  v.  Railroad 
Commission,  136  Wis.  146,  167,  116  N.  W.  915. 

In  determining  whether  or  not  an  order  of  the  Commission  is  un- 
reasonable, it  must  be  considered  that  every  unnecessary  burden  imposed 
upon  a  railroad  impairs  its  net  receipts  and  diminishes  that  margin, 
if  there  be  one,  between  the  amount  sufficient  to  insure  a  fair  rate 
on  the  value  of  its  property;  proof  may  be  made  of  the  amount  of  its 
fixed  charges  and  operating  expenses,  and  of  its  gross  receipts.  In  this 
margin  the  public  and  the  railroad  are  interested,  because  it  is  only 
when  this  exists  that  betterments  in  construction  or  improvements  in  ser- 
vice not  imperative  or  indispensable,  or  reduction  in  rates,  will  ordinarily 
be  voluntarily  made  by  the  railroad  or  can  ordinarily  by  order  be  enforced 
by  the  Commission.  Minneapolis,  St.  Paul  &  Ste.  M.  R.  Co.  v.  Railroad 
Commission,  136  Wis.  146,  168,  116  N.  W.  915. 


176  CALIFORNIA   PUBLIC    UTILITIES   ACT.         §§207,208 

See  Covington  &  L.  T.  R.  Co.  v.  Sandford,  164  U.  S.  578,  17  Sup. 
Ct.   198,  41  L.  ed.  560. 

No  valid  ground  of  distinction  between  unlawful  orders  and  unrea- 
sonable orders  of  the  Commission.  An  unreasonable  order  is  an  un- 
lawful order.  Minneapolis,  St.  P.  &  Ste.  M.  R.  Co.  v.  Railroad  Com- 
mission, 136  Wis.  146,  167,  116  N.  W.  915. 

Unreasonable  order  falling  short  of  being  confiscatory.  Minneapolis, 
St.  P.  &  Ste.  M.  R.  Co.  v.  Railroad  Commission,  136  Wis.  146,  167,  116 
N.  W.  915. 

§  207.    Investigating  and  Fixing  Single  Rates, 

etc. — The  Commission  shall  have  power,  upon  a  hear- 
ing, had  upon  its  own  motion  or  upon  complaint,  to 
investigate  a  single  rate,  fare,  toll,  rental,  charge,  class- 
ification, rule,  regulation,  contract  or  practice,  or  any 
number  thereof,  or  the  entire  schedule  or  schedules  of 
rates,  fares,  tolls,  rentals,  charges,  classifications,  rules, 
regulations,  contracts  and  practices,  or  any  thereof,  of 
any  public  utility,  and  to  establish  new  rates,  fares, 
tolls,  rentals,  charges,  classifications,  rules,  regulations, 
contracts  or  practices,  or  schedule  or  schedules,  in  lieu 
thereof.3 

§  208.  Joint  Rates  and  Through  Rates  on  Common 
Carriers. — Whenever  the  Commission,  after  a  hearing 
had  upon  its  own  motion  or  upon  complaint,  shall  find 
that  the  rates,  fares  or  charges  in  force  over  two  or 
more  common  carriers,  between  any  two  points  in  this 
state,  are  unjust,  unreasonable  or  excessive,  or  that 
no  satisfactory  through  route  or  joint  rate,  fare  or 
charge  exists  between  such  points,  and  that  the  public 
convenience  and  necessity  demand  the  establishment  of 
a  through  route  and  joint  rate,  fare  or  charge  between 
such  points,  the  Commission  may  order  such  common 
carriers  to  establish  such  through  route  and  may  es- 
tablish and  fix  a  joint  rate,  fare  or  charge  which  will 
be  fair,  just,  reasonable  and  sufficient,  to  be  followed, 
charged,  enforced,  demanded    and    collected    in    the 

•  Section  32   (b),  p.  35. 


§  209         POWERS  AND  DUTIES  OF   RAILROAD  COMMISSION.  177 

future,  and  the  terms  and  conditions  under  which  such 
through  route  shall  be  operated.* 

§  209.    Transportation  in  Originating   Car. — 

The  Commission  may  order  that  freight  moving  be- 
tween such  points  shall  be  carried  by  the  different 
common  carriers,  parties  to  such  through  route  and 
joint  rate,  without  being  transferred  from  the  origi- 
nating cars.* 

§  210.    Division  of  Rates,  etc. — Supplemental 

Order. — In  case  the  common  carriers  do  not  agree 
upon  the  division  between  them  of  the  joint  rates, 
fares  or  charges  established  by  the  Commission  over 
such  through  routes,  the  Commission  shall,  after  hear- 
ing, by  supplemental  order,  establish  such  division; 
provided,  that  where  any  railroad  which  is  made  a 
party  to  a  through  route  has  itself  over  its  own  line 
an  equally  satisfactory  through  route  between  the 
termini  of  the  through  route  established,  such  railroad 
shall  have  the  right  to  require  as  its  division  of  the 
joint  rate,  fare  or  charge  its  local  rate,  fare  or  charge 
over  the  portion  of  its  line  comprised  in  such  through 
route,  and  the  Commission  may,  in  its  discretion,  allow 
to  such  railroad  more  than  its  local  rate,  fare,  or  charge 
whenever  it  will  be  equitable  so  to  do.6 

§  211.  Powers  of  Commission  to  Establish  Rates 
and  Fix  Division  of. — The  Commission  shall  have  the 
power  to  establish  and  fix  through  routes  and  joint 
rates,  fares  or  charges  over  common  carriers  and  stage 

«  Section  33,  p.  35. 

Joint   rates   to   be   reasonable   and  just.     Oregon   K.   &   Nav.    Co.   v. 
Campbell,    173    Fed.    980. 
6  Section  33,  p.  35. 
«  lb.,   p.   36. 
19 


178  CALIFORNIA   PUBLIC    UTILITIES   ACT.         §§  212,  213 

or  auto  stage  lines  and  to  fix  the  division  of  such  joint 
rates,  fares  or  charges.7 

§  212.  Interstate  Rates — Application  to  Commerce 
Commission. — The  Commission  shall  have  the  power  to 
investigate  all  existing  or  proposed  interstate  rates, 
fares,  tolls,  charges  and  classifications,  and  all  rules 
and  practices  in  relation  thereto,  for  or  in  relation  to 
the  transportation  of  persons  or  property  or  the  trans- 
mission of  messages  or  conversations,  where  any  act 
in  relation  thereto  shall  take  place  within  this  state; 
and  when  the  same  are,  in  the  opinion  of  the  Commis- 
sion, excessive  or  discriminatory  or  in  violation  of 
the  act  of  Congress  entitled  "An  act  to  regulate  com- 
merce," approved  February  fourth,  eighteen  hundred 
and  eighty-seven,  and  the  acts  amendatory  thereof  and 
supplementary  thereto,  or  of  any  other  act  of  Con- 
gress, or  in  conflict  with  the  rulings,  orders  or  regula- 
tions of  the  Interstate  Commerce  Commission,  the  Com- 
mission may  apply  by  petition  or  otherwise  to  the 
Interstate  Commerce  Commission  or  to  any  court  of 
competent  jurisdiction  for  relief.8 

§  213.  Service,  Equipment,  Facilities — To  be  Fixed 
by  Commission. — Whenever  the  Commission,  after  a 
hearing  had  upon  its  own  motion  or  upon  complaint, 
shall  find  that  the  rules,  regulations,  practices,  equip- 
ment, appliances,  facilities  or  service  of  any  public 
utility,  or  the  methods  of  manufacture,  distribution, 
transmission,  storage  or  supply  employed  by  it,  are 
unjust,  unreasonable,  unsafe,  improper,  inadequate  or 
insufficient,  the  Commission  shall  determine  the  just, 
reasonable,  safe,  proper,  adequate  or  sufficient  rules, 
regulations,  practices,  equipment,  appliances,  facilities, 
service  or   methods  to    be    observed,  furnished,  con- 

i  lb. 

»  Section  34,  p.  36. 


§  214         POWERS  AND  DUTIES  OF  RAILROAD  COMMISSION.  179 

structed,  enforced  or  employed  and  shall  fix  the  same 
by  its  order,  rule  or  regulation.9 

§  214.  Rules  and  Regulations,  etc.,  to  be  Prescribed 
by  Commission. — The  Commission  shall  prescribe  rules 
and  regulations  for  the  performance  of  any  service  or 
the  furnishing  of  any  commodity  of  the  character  fur- 
nished or  supplied  by  any  public  utility,  and,  on  proper 
demand  and  tender  of  rates,  such  public  utility  shall 
furnish  such  commodity  or  render  such  service  within 
the  time  and  upon  the  conditions  provided  in  such 
rules.10 

§  215.  Power  of  Commission  to  Order  Additions, 
Changes,  Improvements. — Whenever  the  Commission, 
after  a  hearing  had  upon  its  own  motion  or  upon  com- 
plaint, shall  find  that  additions,  extensions,  repairs  or 
improvements  to,  or  changes  in,  the  existing  plant, 
equipment,  apparatus,  facilities  or  other  physical  prop- 
erty of  any  public  utility  or  of  any  two  or  more  public 
utilities  ought  reasonably  to  be  made,  or  that  a  new 
structure  or  structures  should  be  erected,  to  promote 
the  security  or  convenience  of  its  employees  or  the 
public,  or  in  any  other  way  to  secure  adequate  service 
or  facilities,  the  Commission  shall  make  and  serve  an 
order  directing  that  such  additions,  extensions,  repairs, 
improvements  or  changes  be  made  or  such  structure 
or  structures  be  erected  in  the  manner  and  within  the 
time  specified  in  said  order.11 

b  Section   35,   p.   36. 

io  lb. 

ii  Section  36,  p.  36. 

An  order  of  a  state  Bailroad  Commission  directing  the  installation 
ami  use  of  an  interlocking  plant  at  the  crossing  on  grade  of  two 
railroads  and  apportioning  between  the  companies  the  expense  of  execut- 
ing the  order  is  not  an  infringement  of  the  constitutional  guaranty 
of  the  right  of  contract  where  there  is  an  existing  contract  between 
such  intersecting  railroad  companies,  under  which  contract  the  junior 
road  has  the  duty  of  constructing  and  properly  maintaining  the  physical 


180  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  216 

§  218.    Site  of  New  Structure  may  be  Fi:r.ed.— 

If  the  Commission  orders  the  erection  of  a  new  struc- 
ture, it  may  also  fix  the  site  thereof.12 

crossing  and  providing  and  maintaining  semaphores  and  other  signals, 
and  providing  and  maintaining  the  requisite  watchmen  to  take  charge 
of  and  operating  the  same.  Grand  Trunk  W.  R.  Co.  v.  Railroad  Com- 
mission of  Indiana,  221  U.  S.  400,  31   Sup.  Ct.  537,   55  L.   ed.  786. 

The  Railroad  Commission  has  power  after  hearing  complaint  and 
determining  facts  to  make  an  order  requiring  the  erection  and  construc- 
tion, at  a  point  named  on  the  line,  by  a  common  carrier,  of  a  platform 
suitable  for  the  loading  and  unloading  of  cream  and  other  merchandise 
shipped  by  express;  and  that  such  platform  be  constructed  so  as  to 
be  useful  to  teams,  and  of  the  kind  and  dimensions  usual  and  custom- 
arily furnished  at  small  stations  where  no  depot  is  maintained;  and 
also  that  it  be  sufficient  to  enable  passengers  to  get  on  and  off  trains 
with  safety.  See  Minneapolis,  St.  P.  &  Ste.  Marie  R.  Co.  v.  Eailroad 
Commission,  136  Wis.   146,   116  N.  W.   915. 

Statute  requiring  railroad  corporation  to  build  and  maintain  depots 
are  sustainable  under  the  police  power  of  the  state.  State  ex  rel.  Bar- 
ton County  v.  Kansas  City  F.  T.  S.  &  G.  R.  Co.,  32  Fed.  722. 

Railroad  company  may  be  required  at  its  own  expense  to  construct 
a  railway  bridge  over  a  highway  made  necessary  by  the  opening  of  a 
road.  Cincinnati,  I.  &  W.  R.  Co.  v.  Connorsville,  218  U.  S.  336,  31 
Sup.  Ct.  93,  54  L.  ed.  1060. 

Eailroad  company  not  entitled  to  be  reimbursed  for  moneys  thus  neces- 
sarily expended.  Chicago,  B.  &  Q.  R.  Co.  v.  Illinois,  200  U.  S.  562, 
582,  584,  591,  26  Sup.  Ct.  341,  4  Am.  &  Eng.  Ann.  Cas.  1175,  50  L.  ed. 
601,  605,  606,  608;  New  Orleans  Gaslight  Co.  v.  Drainage  Commrs.,  197 
U.  S.  453,  25  Sup.  Ct.  471,  49  L.  ed.  831;  New  York  &  N.  E.  R.  Co. 
v.  Bristol,  151  U.  S.  556,  571,  14  Sup.  Ct.  437,  38  L.  ed.  269,  274; 
Chicago,  B.  &  Q.  R  Co.  v.  Chicago,  166  U.  S.  226,  254,  17  Sup.  Ct. 
581,  41  L.  ed.  979,  990;  Northern  Transp.  Co.  v.  Chicago,  99  U.  S. 
635,  25  L.  ed.  336.  See,  also,  Union  Bridge  Co.  v.  United  States, 
204*  U.  S.  364,  27  Sup.  Ct.  367,  51  L.  ed.  523. 
12  Section  36,  p.  37. 

Power  of  the  legislature  to  enact  a  statute  requiring  the  establish- 
ment of  union  depots  has  been  established  by  numerous  and  well-con- 
sidered decisions.  Industrial  Siding  Cases,  140  N.  C.  239,  52  S.  E. 
941;  Corporation  Commission  v.  Atlantic  Coast  Line  R.  Co.,  139  N. 
C.  126,  51  S.  E.  793. 

It  is  competent  for  the  legislature  to  compel  a  railroad  to  turn  over 
its  property  to  its  competitors,  or,  what  is  the  same  thing,  to  enter 
into  a  union  depot  arrangement  with  its  competitors.  Mo.  O.  &  G.  R. 
Co.  v.  State  (Old.),  119  Pac.  117.  See  Mayor  of  Worcester  v.  Nor- 
wich &  W.  R.  Co.,  109  Mass.  103;  State  ex  rel.  Barton  Co.  v.  Kansas 


§  217         POWERS  AND  DUTIES  OF  RAILROAD  COMMISSION.  181 

§  217.    Making  at  Joint  Cost — Apportionment 

of  Cost. — If  any  additions,  extensions,  repairs,  im- 
provements or  changes,  or  any  new  structure  or  struc- 
tures which  the  Commission  has  ordered  to  be  erected, 
require  joint  action  by  two  or  more  public  utilities, 
the  Commission  shall  notify  the  said  public  utilities 

City,  Ft.  S.  &  G.  R.  Co,,  32  Fed.  722;  Dewey  v.  Atlantic  Coast  Line 
R.  Co.,   142  N.   C.   3D2.   53   S.   E.   292. 

In  an  action  to  recover  the  penalty  under  the  Texas  statute  for 
failure  to  establish  a  depot  at  a  railway  crossing,  the  defense  was 
that  the  act  authorizing  the  requirement  of  such  depot  was  in  violation 
of  sections  1  and  2  of  article  X  of  the  Constitution  of  Texas;  but 
the  court,  in  effect,  held  that  the  regulation  prescribed  by  the  statute 
for  the  purpose  of  carrying  out  the  sections  of  the  constitution  might 
very  properly  extend  to  just  such  matters  as  were  embraced  in  the 
act  in  question,  and  that  said  act  simply  prescribed  more  fully  than 
did  former  laws  what  accommodations  should  be  furnished  at  such 
places.  San  Antonio  &  A.  P.  R.  Co.  v.  State,  79  Tex.  264,  14  S.  W. 
1063. 

An  act  of  Massachusetts  (Stats.  1781,  c.  343)  provided  for  a  union 
passenger  station  and  for  the  removal  of  tracks  from  certain  public  ways 
and  grounds  in  the  city  of  Worcester.  In  an  attack  on  the  validity 
of  statute,  proof  was  offered  to  the  effect  that  to  extend  the  roads 
nam<  1  to  a  union  passenger  station,  at  a  point  selected,  would  make 
it  necessary  for  each  of  them  to  extend  the  tracks  a  great  distance, 
amounting  in  the  aggregate  to  many  thousand  feet,  and  at  a  cost 
amounting  in  the  aggregate  to  several  hundred  thousand  dollars,  etc., 
the  court  held  that  this  act  requiring  named  railroads  to  unite  in  a 
union  passenger  station  at  a  point  to  be  determined  by  commissioners 
to  be  constitutional  and  valid,  being  a  reasonable  exorcise  of  the  right 
reserved  to  the  legislature  to  amend,  alter  or  repeal  the  charters  of 
those  corporations.  Mayor  of  Worcester  v.  Norwich  &  W.  R.  Co.,  109 
Mass.  103,  approved  in  Northern  Pac.  R,  Co.  v.  Dustin,  142  U.  S.  492, 
12  Sup.  Ct.  2S3,  35  L.  ed.  1092. 

Statute  or  order  of  Railroad  Commission  establishing  station  is  not 
to  be  interfered  with  except  upon  clear  and  satisfactory  evidence  show- 
ing that  it  is  unjust  and  unreasonable.  In  Matter  of  Auburn  &  W.  R. 
Co.,  37  App.  Div.  162,  55  N.  Y.  Supp.  895. 

An  order  of  the  Railroad  Commission  for  the  establishment  of  a 
union  depot  being  found  to  be  just  and  reasonable  must  be  affirmed. 
Mo.  O.  &  G.  R.  Co.  v.  State,  119  Pac.  117,  citing  Detroit,  Ft.  W.  & 
B.  I.  R.  Co.  v.  Osborn,  189  U.  S.  383,  23  Sup.  Ct.  540,  47  L.  ed.  760; 
So.  Pac.  R.  Co.  v.  Minn.,  298  U.  S.  583,  38  Sup.  Ct.  341,  52  L.  ed.  630; 
Wisconsin,  M.  &  P.  R.  Co.  v.  Jacobson,  179  U.  S.  287,  21  Sup.  Ct.  115, 
45  L.  ed.  194;  Railroad  Commrs.  v.  Portland  &  O.  Cen.  R.  Co.,  63  Me. 


182  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  218 

that  such  additions,  extensions,  repairs,  improvements 
or  changes  or  new  structure  or  structures  have  been 
ordered  and  that  the  same  shall  be  made  at  their  joint 
cost,  whereupon  the  said  public  utilities  shall  have  such 
reasonable  time  as  the  Commission  may  grant  within 
which  to  agree  upon  the  portion  or  division  of  cost 
of  such  additions,  extensions,  repairs,  improvements 
or  changes  or  new  structure  or  structures,  which  each 
shall  bear.13 

§  218.  Fixing  Proportion  of  Cost  by  Commis- 
sion.— If  at  the  expiration  of  such  time  such  public 
utilities  shall  fail  to  file  with  the  Commission  a  state- 
ment that  an  agreement  has  been  made  for  a  division 
or  apportionment  of  the  cost  or  expense  of  such  addi- 
tions, extensions,  repairs,  improvements  or  changes, 

269;  Fitchburg  E.  Co.  v.  Grand  Junction  R.  Co.,  8G  Mass.  (4  Allen) 
198;   8  Am.  &  Eng.  Ency.  of  Law,  385. 

Order  of  Commission,  made  on  petition  filed,  not  having  the  effect 
to  interfere  with  interstate  commerce,  the  Commission  has  jurisdiction 
to  enter  the  same.     See  authorities  in  paragraph  above. 

Point  selected  by  Commission  for  erection  of  depot  as  being  for 
best  interests  of  public  along  line  of  road  should  also  be  a  point 
at  which  the  business  of  the  road  is  remunerative,  is  a  contention  not 
supported  by  the  authority,  nor  is  it  sustainable  on  principle  in  view  of 
theory  upon  which  state  grants  franchises  and  corporations  rights. 
Morgan's  La.  &  T.  R.  &  S.  S.  Co.  v.  Railroad  Commission,  109  La. 
247,  33  So.  24. 

Ability  of  railroad,  in  view  of  its  entire  business,  to  maintain  and 
establish  depot,  and  not  situated  at  some  particular  locality,  is  to  be 
taken  into  consideration.  Morgan's  La.  &  T.  R.  &  S.  S.  Co.  v.  Railroad 
Commission,  109  La.  247,  33  So.  24. 

Where  a  state,  either  by  statute  or  through  the  order  of  its  Board 
of  Railroad  Commission,  requires  a  railroad  to  establish  a  station  at 
a  particular  place  on  the  line  of  its  road,  such  statute  or  order  is  not 
to  be  overthrown  by  the  courts  as  unreasonable  merely  because  the 
establishing  or  maintenance  of  such  station  would  prove  unremunerative. 
Regard  is  to  be  had  to  the  financial  ability  of  the  railroad,  in  view 
of  its  entire  business,  to  establish  and  maintain  such  station.  Morgan's 
La.  &  T.  R.  &  S.  S.  Co.  v.  Railroad  Commission,  109  La.  247,  33  So. 
24.  See  In  Matter  of  Auburn  &  W.  R.  Co.,  37  App.  Div.  162,  55  N. 
Y.  Supp.  895. 

is  Section  36,  p.  37. 


§  219         POWERS  AND  DUTIES  OF  RAILROAD  COMMISSION.  183 

or  new  structure  or  structures,  the  Commission  shall 
have  authority,  after  further  hearing,  to  make  an  order 
fixing  the  proportion  of  such  cost  or  expense  to  be 
borne  by  each  public  utility  and  the  manner  in  which 
the  same  shall  be  paid  or  secured.14 

§  219.  Power  of  Commission  to  Order  Changes  in 
Time  Schedule  and  Running  Additional  Cars  and 
Trains. — Whenever  the  Commission,  after  a  hearing 
had  upon  its  own  motion  or  upon  complaint,  shall  find 
that  any  railroad  corporation  or  street  railroad  cor- 
poration does  not  run  a  sufficient  number  of  trains  or 
cars,  or  possess  or  operate  sufficient  motive  power,  rea- 
sonably to  accommodate  the  traffic,  passenger  or 
freight,  transported  by  or  offered  for  transportation 
to  it,  or  does  not  run  its  trains  or  cars  with  sufficient 
frequency  or  at  a  reasonable  or  proper  time  having 
regard  to  safety,  or  does  not  stop  the  same  at  proper 
places,  or  does  not  run  any  train  or  trains,  car  or  cars, 
upon  a  reasonable  time  schedule  for  the  run,  the  Com- 
mission shall  have  power  to  make  an  order  directing 
any  such  railroad  corporation  or  street  railroad  cor- 
poration to  increase  the  number  of  its  trains  or  of  its 
cars  or  its  motive  power  or-  to  change  the  time  for 
starting  its  trains  or  cars  or  to  change  the  time  sched- 
ule for  the  run  of  any  train  or  car,  or  to  change  the 
stopping-place  or  places  thereof,  or  to  make  any  other 
order  that  the  Commission  may  determine  to  be  rea- 
sonably necessary  to  accommodate  and  transport  the 
traffic,  passenger  or  freight,  transported  or  offered  for 
transportation.15 

i*  lb. 

is  Section  37,  p.  37. 

A  railroad  is  under  governmental  control,  though  such  control  must 
be  exercised  with  due  regard  to  the  constitutional  guaranties  for  the 
protection  of  its  property.  Smyth  v.  Ames,  1C9  U.  S.  466,  18  Sup.  Ct. 
418,  42  L.  ed.  819;  see  Louisville  &  N.  B.  Co.  v.  Kentucky,  L83  U.  S. 
503,  22  Sup.  Ct.  95,  46  L.  ed.  29S;   Railroad  Connection  Cases  (North 


184  CALIFORNIA  PUBLIC    UTILITIES   ACT.  §  220 

§  220.  Track  Connections. — Whenever  the  Commis- 
sion, after  a  hearing  had  upon  its  own  motion  or  upon 
complaint,  shall  find  that  the  public  convenience  and 
necessity  would  be  subserved  by  having  connections 
made  between  the  tracks  of  any  two  or  more  railroad 

Carolina  Corporation  Commission  v.  Atlantic  Coast  Line  R.  Co.),  137 
N.  C.  1,  49  S.  E.  191,  115  Am.  St.  Rep.  636;  Atlantic  Coast  Line  v. 
North  Carolina  Corporate  Commission,  206  U.  S.  1,  27  Sup.  Ct.  585, 
51   L.   ed.    933. 

State  regulation  compelling  passenger  train  service  between  the 
termini  of  a  branch  line  within  the  state  and  the  state  line  is  a  rea- 
sonable exercise  of  police  power  of  the  state  and  is  not  an  infringement 
upon  the  right  of  ownership,  and  does  not  operate  as  a  burden  upon 
interstate  commerce.  Missouri  Pac.  R.  Co.  v.  Kansas,  216  U.  S.  262, 
30   Sup.   Ct.   330,   54   L.   ed.   472. 

See  other  authorities,  Dig.  U.  S.  Rep.  (L.  ed.),  tit.  "Carriers,"  III. 
A  state  Board  of  Railroad  Commissioners  may  promulgate  an  order 
requiring  carriers  to  operate  separate  passenger  service  within  the 
state,  in  the  exercise  of  police  power  to  enforce  local  regulation  neces- 
sary for  the  convenience,  safety  and  comfort  of  the  public;  it  is  not 
invalid  on  the  ground  of  an  attempt  to  regulate  interstate  commerce, 
and  it  does  not  directly  cast  a  burden  upon  such  commerce.  State  ex 
rel.   Taylor  v.   Missouri  Pac.   R.   Co.,   76  Kan.   467,  92   Pac.   606. 

Order  of  Commission  entered  on  finding  that  railroads  should  operate 
double  daily  service  between  given  points  within  a  state,  and  that 
said  service  should  be  so  rendered  as  to  make  connections  at  junctions 
or  points  as  nearly  as  possible,  sustained.  St.  Louis  &  S.  F.  R.  Co. 
v.  Williams,  25   Okl.   662,   107   Pac.   428. 

Order  of  a  state  Board  of  Railroad  Commissioners  requiring  a  corpora- 
tion to  operate  separate  passenger  trains  is  not  unreasonable  on  its  face. 
State  ex  rel.  Taylor  v.  No.  Pac.  R.  Co.,  76  Kan.  467,  92  Pac.  606. 

As  to  right  of  Commission  to  require  railroad  to  operate  passenger 
trains  separate  from  mixed  trains  for  the  accommodation  of  the  public, 
see  People  v.  St.  L.,  A.  &  T.  H.  R.  Co.,  176  111.  512,  52  N.  E.  292, 
35  L.  R.  A.  656 ;  State  ex  rel.  Taylor  v.  No.  Pac.  R.  Co.,  76  Kan.  467, 
492,  92  Pac.  606. 

"Extent  to  which  legislature  shall  extend  its  control  and  regulation 
of  common  carriers  lies  in  the  discretion  of  the  legislature  alone,  ex- 
cept that  it  must,  of  course,  be  reasonable  and  just,  and  must  not 
deprive  the  owners  of  a  fair  and  reasonable  rate  upon  their  investment." 
State  ex  rel.  Taylor  v.  Northern  Pacific  R.  Co.,  76  Kan.  467,  489,  92 
Pac.   606.     See   State   v.   Johnson,   61   Kan.    803,   60   Pac.    1068,   49   L. 

R.   A.   662. 

Order  of  Railroad  Commission  requiring  company  to  furnish  additional 
facilities  for  the  accommodation  of  the  public  will  be  enforced  where 
necessary,   notwithstanding    the   fact   that   it   will    occasion   expense    to 


§  220         POWERS  AND  DUTIES  OF  RAILROAD  COMMISSION.  185 

or  street  railroad  corporations,  so  that  cars  may  readily 
be  transferred  from  one  to  the  other,  at  any  of  the 
points  hereinafter  in  this  section  specified,  the  Com- 
mission may  order  any  two  or  more  such  corporations 
owning,  controlling,  operating  or  managing  tracks  of 
the  same  gauge  to  make  physical  connections  at  any 
and  all  crossings,  and  at  all  points  where  a  railroad 
or  street  railroad  shall  begin  or  terminate  or  run  near 
to  any  other  railroad  or  street  railroad.16 

the  company  and  even  loss  of  profit.  State  ex  rel.  Taylor  v.  Missouri- 
Pac.  R.  Co.,  76  Kan.  467,  501,  92  Pac.  606.  See  Atlantic  Coast  Line 
v.  North  Carolina  Corporate  Commission,  206  U.  S.  1,  27  Sup.  Ct.  581, 
51  L.  ed.  933;  Wisconsin,  M.  &  Pac.  R.  Co.  v.  Jacobson,  197  U.  S. 
287,   21   Sup.   Ct.   115,   45   L.   ed.   194. 

Order  of  commissioners  requiring  carrier  to  operate  separate  pas- 
senger trains,  held  not  to  be  unreasonable  upon  its  face.  State  ex 
rel.   Taylor  v.  Missouri  Pac.   R.  Co.,  76  Kan.  467,   92   Pac.  606. 

Separate  compartments  for  white  and  black  passengers,  required  by 
the  state  of  Mississippi,  when  applied  to  that  portion  of  an  interstate 
road  within  the  state,  was  held  not  to  place  a  burden  upon  interstate 
commerce,  although  it  requires  the  railroad  company  to  go  to  the  ex- 
pense of  providing  separate  accommodations  for  use  within  the  state, 
which,  when  the  same  road  crosses  into  another  state,  held  not  required. 
Louisville  R.  Co.  v.  Mississippi,  133  U.  S.  587,  10  Sup.  Ct.  348,  33  L. 
ed.  784. 

As  to  carrying  negro  passengers  in  separate  coaches,  see  chapter  VII, 
footnote  3. 

is  Section   38,   p.   37. 

Statutory  provision  requiring  railroad  companies  to  make  such  physical 
connection,  transfers  and  switch  facilities  as  may  be  ordered  by  the 
Corporation  Commission,  and  empowering  said  Commission,  on  com- 
plaint on  its  own  motion,  to  require  such  compauies  to  make  such 
physical  connection  and  establish  ami  maintain  anion  depots,  etc.,  as 
the  public  interest  may  require,  is  a  valid  exercise  of  legislative 
power.     Mo.  O.  &  G.   R.  Co.  v.  State   (Okl.),  119  Pac.   117. 

Under  statute  requiring  railroad  to  make  physical  connection,  etc., 
at  such  points  as  may  be  ordered  by  the  Commission,  an  order  of  the 
Commission  requiring  the  establishment  of  a  union  depot  will  be  en- 
forced, notwithstanding  the  added  cost  and  actual  delay  in  entering 
trains.     Mo.  O.  &  G.  R.  Co.  v.  State    (Okl.),   119  Pac.   117. 

The  state  regulation  requiring  all  railroads,  at  all  points  of  connect- 
ing, crossing  or  intersection  with  roads  of  other  railroads,  to  establish 
and  maintain  suitable  platforms  and  station-houses  for  the  convenience 
of  passengers   desiring   to    transfer   from   one   road   lo   another,   and  for 


186  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  221 

§  221.  Cities  and  Towns. — After  the  neces- 
sary franchise  or  permit  has  been  secured  from  the 
city  and  county,  or  city  or  town,  the  Commission  may 
likewise  order  such  physical  connection,  within  such 

the  transfer  of  passengers,  baggage  or  freight  whenever  the  same  shall 
be  ordered  by  the  Eailroad  Commission,  and  shall,  when  ordered  by  such 
Commission,  keep  such  depot  or  passenger-house  warmed,  lighted  and 
open  a  reasonable  time  before  the  arrival  and  until  after  the  departure 
of  all  trains  carrying  passengers;  and  that  said  railroads  shall  stop 
all  trains  at  such  depots  for  the  transfer  of  passengers,  baggage  and 
freight,  when  so  ordered  by  the  Commission,  is  in  nowise  a  regulation 
of  commerce  within  the  meaning  of  the  constitution.  Wisconsin  Co. 
v.  Jacobson,  197  U.  S.  287,  295,  21  Sup.  Ct.  115,  118,  45  L.  ed.  194; 
Southern  Pac.  Co.  v.  Campbell,  189  Fed.  696. 

Constitution  of  Kentucky  (section  213)  requires  all  railroad  com- 
panies organized  under  the  laws  of  that  state  or  doing  a  railway  busi- 
ness therein  to  receive,  transfer,  deliver  and  switch  empty  or  loaded 
cars,  and  to  move,  transport,  receive,  load  or  unload  all  the  freight  in 
carloads  or  less  quantities  coming  to  or  going  from  any  railroad,  transfer 
or  belt  line,  with  equal  promptness  and  dispatch  and  without  any  dis- 
crimination; and  shall  receive,  deliver,  transfer  and  transport  all  freight 
as  above  set  forth  from  and  to  any  point  where  there  is  a  physical  con- 
nection between  the  tracks  of  such  railroad  companies.  This  provision 
of  the  constitution  came  under  consideration  in  the  case  of  Central 
Stockyards  Co.  v.  Louisville  &  N.  E.  Co.,  118  Fed.  113,  55  C.  C.  A.  63, 
63  L.  E.  A.  213. 

In  relation  to  the  power  of  the  state  to  compel  a  railroad  company 
to  transfer  cars  of  livestock  to  a  connecting  road  at  a  point  of  con- 
nection within  the  state  where  the  shipment  was  received  in  another 
state  and  was  rendered  thereby  interstate  commerce,  the  supreme  court 
passed  over  the  constitutional  question  and  disposed  of  the  case  on  the 
ground  that  a  railroad  having  its  own  stockyards  in  a  city  cannot  be 
required  to  accept  livestock  from  other  states  for  delivery  at  the 
stockyards  of  another  railroad  company  in  the  same  city.  Central 
Stockyards  v.  L.  &  N.  E.  Co.,  192  U.  S.  568,  24  Sup.  Ct.  339,  48  L. 
ed.  565. 

In  a  later  case,  however,  the  supreme  court  held  that  the  Kentucky 
constitution  as  construed  by  the  courts  of  that  state  (Louisville  &  N. 
E.  Co.  v.  Central  Stockyards  Co.,  133  Ky.  148,  97  S.  W.  778),  requir- 
ing a  delivery  and  transfer  by  a  railroad  company  by  its  own  cars, 
was  a  taking  of  property  without  due  process  of  law,  and  therefore 
contrary  to  the  Fourteenth  Amendment  of  the  national  constitution. 
Louisville  &  N.  E,  Co.  v.  Stockyards  Co.,  212  U.  S.  132,  29  Sup.  Ct.  246, 
53  L.  ed.  44. 


§  222         POWERS  AND  DUTIES  OF  RAILROAD   COMMISSION.  187 

city  and  county,  or  city  or  town,  between  two  or  more 
railroads  which  enter  the  limits  of  the  same.17 

§  222.  Expense  of  Connections. — The  Com- 
mission shall  by  order  direct  whether  the  expense  of 
the  connections  referred  to  in  this  section  shall  be  borne 
jointly  or  otherwise.18 

§  223.  Switch  and  Spur  Connections. — Whenever 
the  Commission,  after  a  hearing  had  upon  its  own 
motion  or  upon  complaint,  shall  find  that  application 
has  been  made  by  any  corporation  or  person  to  a  rail- 
road corporation  for  a  connection  or  spur  as  pro- 
vided in  section  25  of  this  act,  and  that  the  railroad 
corporation  has  refused  to  provide  such  connection  or 
spur  and  that  the  applicant  is  entitled  to  have  the  same 
provided  for  him  under  said  section  25,  the  Commis- 
sion shall  make  an  order  requiring  the  providing  of 
such  connection  or  spur  and  the  maintenance  and  use 
of  the  same  upon  reasonable  terms  which  the  Com- 
mission shall  have  the  power  to  prescribe.19 

§  224.    Any  Corporation  or  Person  Entitled  to 

Connect — Division  of  Primary  Expense.— Whenever 
any  such  connection  or  spur  has  been  so  provided,  any 
corporation  or  person  shall  be  entitled  to  connect  with 
the  private  track,  tracks  or  railroad  thereby  connected 
with  the  railroad  of  the  railroad  corporation  and  to 
use  the  same  or  to  use  the  spur  so  provided  upon  pay- 
ment to  the  party  or  parties  incurring  the  primary 
expense  of  such  private  track,  tracks  or  railroad,  or 
the  connection  therewith  or  of  such  spur,  of  a  reason- 
able proportion  of  the  cost  thereof  to  be  determined 
by  the  Commission  after  notice  to  the  interested  par- 
ties and  a  hearing  thereon;  provided,  that  such  con- 

17  Section    38,    p.    38. 

is  lb. 

is  Section  39    (a),  p.  38. 


188  CALIFORNIA   PUBLIC    UTILITIES   ACT.         §§225,226 

nection  and  use  can  be  made  without  unreasonable 
interference  with  the  rights  of  the  party  or  parties 
incurring  such  primary  expense.20 

§  225.    Interchange   Switching  to   Industrial 

Track. — The  Commission  shall  likewise  have  the  power 
to  require  one  railroad  corporation  to  switch  to  private 
spurs  and  industrial  tracks  upon  its  own  railroad  the 
cars  of  a  connecting  railroad  corporation  and  to  pre- 
scribe the  terms  and  compensation  for  such  service.21 

§  226.  Telephone  and  Telegraph  Line — Physical 
Connection. — Whenever  the  Commission,  after  a  hear- 
ing had  upon  its  own  motion  or  upon  complaint,  shall 
find  that  a  physical  connection  can  reasonably  be  made 
between  the  lines  of  two  or  more  telephone  corpora- 
tions or  two  or  more  telegraph  corporations  whose 
lines  can  be  made  to  form  a  continuous  line  of  com- 
munication, by  the  construction  and  maintenance  of 
suitable  connections  for  the  transfer  of  messages  or 
conversations,  and  that  public  convenience  and  neces- 
sity will  be  subserved  thereby,  or  shall  find  that  two 
or  more  telegraph  or  telephone  corporations  have 
failed  to  establish  joint  rates,  tolls  or  charges  for 
service  by  or  over  their  said  lines,  and  that  joint  rates, 
tolls  or  charges  ought  to  be  established,  the  Commis- 
sion may,  by  its  order,  require  that  such  connection 
be  made,  except  where  the  purpose  of  such  connection 
is  primarily  to  secure  the  transmission  of  local  mes- 
sages or  conversations  between  points  within  the  same 
city  and  county,  or  city  or  town,  and  that  conversa- 
tions be  transmitted  and  messages  transferred  over 
such  connection  under  such  rules  and  regulations  as 
the  Commission  may  establish,  and  prescribe  through 

20  ib. 

2i  Section  39    (b),  p.  38. 


§  227         POWERS  AND  DUTIES  OF   RAILROAD   COMMISSION.  1    9 

lines  and  joint  rates,  tolls  and  charges  to  be  made, 
and  to  be  used,  observed  and  in  force  in  the  future." 

§  227.  Apportionment  of  Expense  and  Division  of 
Joint  Rates. — If  such  telephone  or  telegraph  corpora- 
tions do  not  agree  upon  the  division  between  them  of 
the  cost  of  such  physical  connection  or  connections  or 
the  division  of  the  joint  rates,  tolls  or  charges  estab- 
lished by  the  Commission  over  such  through  lines,  the 
Commission  shall  have  authority,  after  further  hear- 
ing, to  establish  such  division  by  supplemental  order.23 

§  228.  Use  of  Joint  Facilities. — Whenever  the  Com- 
mission, after  a  hearing  had  upon  its  own  motion  or 
upon  complaint  of  a  public  utility  affected,  shall  find 
that  public  convenience  and  necessity  require  the  use 
by  one  public  utility  of  the  conduits,  subways,  tracks, 
wires,  poles,  pipes  or  other  equipment,  or  any  part 
thereof,  on,  over,  or  under  any  street  or  highway,  and 
belonging  to  another  public  utility,  and  that  such  use 
will  not  result  in  irreparable  injury  to  the  owner  or 
other  users  of  such  conduits,  subways,  tracks,  wires, 
poles,  pipes  or  other  equipment  or  in  any  substantial 
detriment  to  the  service,  and  that  such  public  utilities 
have  failed  to  agree  upon  such  use  or  the  terms  and 
conditions  or  compensation  for  the  same,  the  Commis- 
sion may  by  order  direct  that  such  use  be  permitted, 
and  prescribe  a  reasonable  compensation  and  reason- 
able terms  and  conditions  for  the  joint  use.2* 

§  229.    Liability  for  Damages  from  Use. — If 

such  use  be  directed,  the  public  utility  to  whom  the  use 
is  permitted  shall  be  liable  to  the  owner  or  other  users 
of  such  conduits,  subways,  tracks,  wires,  poles,  pipes 
or  other  equipment  for  such    damage  as  may  result 

22  Section   40,   p.   38. 

23  lb.,  p.  39. 

2*  Section  41,  p.  39. 


190  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  230 

therefrom  to  the  property  of  such  owner  or  other  users 
thereof.26 

§  230.  Health  and  Safety  —  Safety  Devices.— The 
Commission  shall  have  power,  after  a  hearing  had  upon 
its  own  motion  or  upon  complaint,  by  general  or  special 
orders,  rules  or  regulations,  or  otherwise,  to  require 
every  public  utility  to  maintain  and  operate  its  line, 
plant,  system,  equipment,  apparatus,  tracks  and  prem- 
ises in  such  manner  as  to  promote  and  safeguard  the 
health  and  safety  of  its  employees,  passengers,  cus- 
tomers, and  the  public,  and  to  this  end  to  prescribe, 
among  other  things,  the  installation,  use,  maintenance 
and  operation  of  appropriate  safety  or  other  devices  or 
appliances,  including  interlocking  and  other  protective 
devices  at  grade  crossings  or  junctions  and  block  or 
other  systems  of  signaling,  to  establish  uniform  or 
other  standards  of  equipment,  and  to  require  the  per- 
formance of  any  other  act  which  the  health  or  safety 
of  its  employees,  passengers,  customers  or  the  public 
may  demand.28 

25  ib. 

Safety  appliance  required  on  car  by  state  regulation  does  not  re- 
quire such  appliance  on  car  engaged  in  interstate  commerce  on  connection 
of  such  car  and  a  car  subject  to  state  regulation.  See  Louisville  &  N.  R. 
Co.  v.  W.  U.  S.,  186  Fed.  280. 

State  regulation  regarding  the  heating  of  steam  passenger  cars  and 
requiring  guards  and  guard-posts  on  railway  bridges  and  trestles  was 
held  to  be  valid  in  New  York.  N.  H.  E.  Co.  v.  New  York,  165  U.  S. 
628,  17  Sup.  Ct.   418,  41  L.  ed.  853. 

State  regulation  requiring  engineers  on  trains  operating  within  the 
state  to  first  undergo  an  examination  before  obtaining  a  license  from 
the  state  board  appointed  for  that  purpose,  the  object  of  the  act  being 
to  protect  the  traveling  public  from  injury  and  loss  by  reason  of  color 
blindness  in  such  engineer,  is  a  constitutional  and  valid  exercise  of  its 
police  power  by  the  state.  Smith  v.  Alabama,  124  U.  S.  461,  8  Sup. 
Ct.  564,  31  L.  ed.  508,  1  Int.  Com.  Rep.  804;  Nashville,  C.  &  St.  L. 
R.  Co.  v.  Alabama,  128  U.  S.  96,  9  Sup.  Ct.  28,  32  L.  ed.  352,  2  Int. 
Com.  Rep.  238. 

26  Section  42,  p.  39. 


§  231         POWERS  AND  DUTIES  OF  RAILROAD  COMMISSION.  191 

§  231.  Grade  Crossings — Prohibition  of  Future. — 
No  public  road,  highway  or  street  shall  hereafter  be 
constructed  across  the  track  of  any  railroad  corpora- 
tion at  grade,  nor  shall  the  track  of  any  railroad  cor- 
poration be  constructed  across  a  public  road,  high- 
way or  street  at  grade,  nor  shall  the  track  of  any  rail- 
road corporation  be  constructed  across  the  track  of 
any  other  railroad  or  street  railroad  corporation  at 
grade,  nor  shall  the  track  of  a  street  railroad  corpora- 
tion be  constructed  across  thejrack  of  a  railroad  cor- 
poration at  grade,  without  having  first  secured  the 
permission  of  the  Commission;  provided,  that  this  sub- 
section shall  not  apply  to  the  replacement  of  lawfully 
existing  tracks.  The  Commission  shall  have  the  right 
to  refuse  its  permission  or  to  grant  it  upon  such  terms 
and  conditions  as  it  may  prescribe.27 

§  232.    Determining  Manner  of  —  Abolishing 

Established. — The  Commission  shall  have  the  exclu- 
sive power  to  determine  and  prescribe  the  manner,  in- 
cluding the  particular  point  of  crossing,  and  the  terms 
of  installation,  operation,  maintenance,  use  and  pro- 
tection of  each  crossing  of  one  railroad  by  another  rail- 
road or  street  railroad,  and  of  a  street  railroad  by  a 
railroad,  and  of  each  crossing  of  a  public  road  or  high- 
way by  a  railroad  or  street  railroad  and  of  a  street  by 
a  railroad  or  vice  versa,  subject  to  the  provisions  of 
section  2694  of  the  Political  Code,  so  far  as  applicable, 
and  to  alter  or  abolish  any  such  crossing,  and  to  re- 
quire where,  in  its  judgment,  it  would  be  practicable, 
a  separation  of  grades  at  any  such  crossing  heretofore 
or  hereafter  established  and  to  prescribe  the  terms 
upon  which  such  separation  shall  be  made  and  the 
proportions  in  which  the  expense  of  the  alteration  or 
abolition  of  such  crossings  or  the  separation  of  such 
grades  shall  be  divided  between  the  railroad  or  street 

2T  Section  43    (*a),  p.   40. 


192  CALIFORNIA   PUBLIC    UTILITIES   ACT.         §§233-236 

railroad  corporations  affected  or  between  such  corpo- 
rations and  the  state,  county,  municipality  or  other 
public  authority  in  interest.28 

§  233.  Investigation  of  Accidents — Orders  and  Rec- 
ommendations.— The  Commission  shall  investigate  the 
cause  of  all  accidents  occurring  within  this  state  upon 
the  property  of  any  public  utility  or  directly  or  in- 
directly arising  from  or  connected  with  its  main- 
tenance or  operation,  resulting  in  loss  of  life  or  injury 
to  person  or  property  and  requiring,  in  the  judgment 
of  the  Commission,  investigation  by  it,  and  shall  have 
the  power  to  make  such  order  or  recommendation  with 
respect  thereto  as  in  its  judgment  may  seem  just  and 
reasonable.29 

§  234.    Orders,  etc.,  nor  Report  Filed  With,  to 

be  Admitted  in  Evidence. — Provided,  that  neither  the 
order  or  recommendation  of  the  Commission  nor  any 
accident  report  filed  with  the  Commission  shall  be  ad- 
mitted as  evidence  in  any  action  for  damages  based 
on  or  arising  out  of  the  loss  of  life,  or  injury  to  person 
or  property,  in  this  section  referred  to.30 

§  235.    Report  to  be  Filed  With  Commission. 

Every  public  utility  is  hereby  required  to  file  with 
the  Commission,  under  such  rules  and  regulations  as 
the  Commission  may  prescribe,  a  report  of  each  acci- 
dent so  occurring  of  such  kinds  or  classes  as  the  Com- 
mission may  from  time  to  time  designate.31 

§  236.  Rules  to  Expedite  Traffic— Power  of  Com- 
mission to  Provide. — The  Commission  shall  have  power 
to  provide  by  proper  rules  and  regulations  the  time 

40. 


28 

Section 

43 

(b),   P. 

29 

Section 

44, 

p.   40. 

BO 

lb. 

31 

lb. 

§  237         POWERS  AND  DUTIES  OF  RAILROAD  COMMISSION.  193 

within  which  all  railroad  corporations  shall  furnish, 
after  demand  therefor,  all  cars,  equipment  and  facil- 
ities necessary  for  the  handling  of  freight  in  carload 
and  less  than  carload  lots,  the  time  within  which  con- 
signors or  persons  ordering  cars  shall  load  the  same, 
and  the  time  within  which  consignees  or  persons  to 
whom  freight  may  be  consigned  shall  unload  and  dis- 
charge the  same  and  receive  freight  from  the  freight- 
rooms,  and  to  provide  penalties  to  be  paid  for  failure 
on  the  part  of  the  railroad  corporations,  consignors  and 
consignees  to  conform  to  such  rules.32 

§  237.  Demurrage  Charges. — Charges  for  de- 
murrage shall  be  uniform  so  that  the  same  penalty 
shall  be  paid  by  both  shipper  or  consignee  and  railroad 
corporation  for  an  equal  number  of  cars  for  each  day 
for  which  demurrage  is  charged.33 

§  238.  Express  and  Telegraph  Rules  and  Regula- 
tions.— The  Commission  shall  also  have  power  to  pro- 
vide the  time  within  which  express  packages  shall  be 
received,  gathered,  transported  and  delivered  at  des- 
tination, and  the  limits  within  which  express  pack- 
ages shall  be  gathered  and  distributed  and  telegraph 
and  telephone  messages  delivered  without  extra 
charge.3* 

§  239.  Power  of  Commission  as  to  Service,  etc.,  of 
Public  Utilities. — The  Commission  shall  have  power, 
after  hearing  had  upon  its  own  motion  or  upon  com- 
plaint, to  ascertain  and  fix  just  and  reasonable  stand- 
ards, classifications,  regulations,  practices,  measure- 
ments or  service  to  be  furnished,  imposed,  observed 
and   followed   by  all    electrical,   gas   and    water   cor- 

32  Section   45    (a),  p.   40. 

33  lb.,   p.   41. 

s*  Section    45    (b),   41. 
13 


194  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §§  240-243 

porations;  to  ascertain  and  fix  adequate  and  service- 
able standards  for  the  measurement  of  quantity, 
quality,  pressure,  initial  voltage  or  other  condition 
pertaining  to  the  supply  of  the  product,  commodity  or 
service  furnished  or  rendered  by  any  such  public  util- 
ity; to  prescribe  reasonable  regulations  for  the  exam- 
ination and  testing  of  such  product,  commodity  or 
service  and  for  the  measurement  thereof;  to  establish 
reasonable  rules,  regulations,  specifications  and  stand- 
ards to  secure  the  accuracy  of  all  meters  and  appli- 
ances for  measurements ;  and  to  provide  for  the  exam- 
ination and  testing  of  any  and  all  appliances  used  for 
the  measurement  of  any  product,  commodity  or  service 
of  any  such  public  utility.35 

§  240.    Power  of  Commissioners,  etc.,  to  Enter 

Premises,  etc. — Right  to  be  Present  at  Test. — The  com- 
missioners and  their  officers  and  employees  shall  have 
power  to  enter  upon  any  premises  occupied  by  any 
public  utility,  for  the  purpose  of  making  the  exam- 
inations and  tests  and  exercising  any  of  the  other 
powers  provided  for  in  this  act,  and  to  set  up  and  use 
on  such  premises  any  apparatus  and  appliances  neces- 
sary therefor.  The  agents  and  employees  of  such  pub- 
lic utility  shall  have  the  right  to  be  present  at  the 
making  of  such  examinations  and  tests.36 

§  241.  Consumers  and  Users  may  have  Ap- 
pliances Tested.  —  Any  consumer  or  user  of  any 
product,  commodity  or  service  of  a  public  utility  may 
have  any  appliance  used  in  the  measurement  thereof 
tested  upon  paying  the  fees  fixed  by  the  Commission.37 

§  242.    Commission  may  Prescribe    Fees  for 

Testing. — The  Commission  shall  establish  and  fix  rea- 

35  Section  46  (a),  p.  41. 
se  Section  46  (b),  p.  41. 
37  Section  46   (c),  p.  41. 


§  243         POWERS  AND  DUTIES  OF  RAILROAD  COMMISSION.  195 

Bonable  fees  to  be  paid  for  testing  such  appliances  on 
the  request  of  the  consumer  or  user,  the  fee  to  be  paid 
by  the  consumer  or  user  at  the  time  of  his  request,  but 
to  be  paid  by  the  public  utility  and  repaid  to  the  con- 
sumer or  user  if  the  appliance  is  found  defective  or 
incorrect  to  the  disadvantage  of  the  consumer  or  user, 
under  such  rules  and  regulations  as  may  be  prescribed 
by  the  Commission.38 

§  243.  Valuation  of  Property. — The  Commission 
shall  have  power  to  ascertain  the  value  of  the  property 
of  every  public  utility  in  this  state  and 'every  fact 
which  in  its  judgment  may  or  does  have  any  bearing 
on  such  value.39 

§  244.    Revaluation,  etc.,  Extension,  etc. — The 

Commission  shall  have  power  to  make  revaluations 
from  time  to  time  and  to  ascertain  all  new  construction, 
extensions  and  additions  to  the  property  of  every  pub- 
lic utility.40 

§  245.  Uniform  System  of  Accounting— Commis- 
sion may  Prescribe. — The  Commission  shall  have 
power  to  establish  a  system  of  accounts  to  be  kept  by 
the  public  utilities  subject  to  its  jurisdiction,  or  to 
classify  said  public  utilities  and  to  establish  a  system 
of  accounts  for  each  class,  and  to  prescribe  the  man- 
ner in  which  such  accounts  shall  be  kept.  It  may  also 
in  its  discretion  prescribe  the  forms  of  accounts,  rec- 
ords and  memoranda  to  be  kept  by  such  public  utilities, 
including  the  accounts,  records  and  memoranda  of  the 
movement  of  traffic  as  well  as  the  receipts  and  expendi- 
tures of  moneys,  and  any  other  forms,  records  and 
memoranda  which  in  the  judgment  of  the  Commission 

»8  ib. 

89  Section  47,  p.  42. 

*o  lb. 


196  CALIFORNIA   PUBLIC    UTILITIES   ACT.         §§  246,  247 

may  be  necessary  to  carry  out  any  of  the  provisions  of 
this  act.41 

§  246.  Forms  in  Addition  to  Those  of  Com- 
merce Commission. — The  system  of  accounts  estab- 
lished by  the  Commission  and  the  forms  of  accounts, 
records  and  memoranda  prescribed  by  it  shall  not  be 
inconsistent,  in  the  case  of  corporations  subject  to  the 
provisions  of  the  act  of  Congress  entitled  "An  act 
to  regulate  commerce,"  approved  February  fourth, 
eighteen  hundred  and  eighty-seven,  and  the  acts 
amendatory  thereof  and  supplementary  thereto,  with 
the  systems  and  forms  from  time  to  time  established 
for  such  corporations  by  the  Interstate  Commerce 
Commission,  but  nothing  herein  contained  shall  affect 
the  power  of  the  Commission  to  prescribe  forms  of 
accounts,  records  and  memoranda  covering  informa- 
tion in  addition  to  that  required  by  the  Interstate 
Commerce  Commission.42 

§  247.  Unlawful  to  Keep  Records  and  Ac- 
counts Otherwise  Than  as  Prescribed. — The  Commis- 
sion may,  after  hearing  had  upon  its  own  motion  or 
upon  complaint,  prescribe  by  order  the  accounts  in 
which  particular  outlays  and  receipts  shall  be  entered, 
charged  or  credited.  Where  the  Commission  has  pre- 
scribed the  forms  of  accounts,  records  or  memoranda 
to  be  kept  by  any  public  utility  for  any  of  its  business, 
it  shall  thereafter  be  unlawful  for  such  public  utility 
to  keep  any  accounts,  records  or  memoranda  for  such 
business  other  than  those  so  prescribed,  or  those  pre- 
scribed by  or  under  the  authority  of  any  other  state 
or  of  the  United  States,  excepting  such  accounts,  rec- 
ords or  memoranda  as  shall  be  explanatory  of  and  sup- 

4i  Section  48,  p.  42. 

42    lb. 


§  248         POWERS  AND  DUTIES  OF  RAILROAD  COMMISSION.  197 

plemental  to  the  accounts,  records  or  memoranda  pre- 
scribed by  the  Commission.43 

§  248.  Depreciation  Accounts. — The  Commission 
shall  have  power,  after  hearing,  to  require  any  or  all 
public  utilities  to  carry  a  proper  and  adequate  depre- 
ciation account  in  accordance  with  such  rules,  regula- 
tions and  forms  of  account  as  the  Commission  may 
prescribe.44 

§  249.    Rates  of  Depreciation  to  be  Fixed  by 

Commission. — The  Commission  may,  from  time  to  time, 
ascertain  and  determine  and  by  order  fix  the  proper 
and  adequate  rates  of  depreciation  of  the  several 
classes  of  property  of  each  public  utility.45 

§  250.  Public  Utilities  to  Conform  Deprecia- 
tion to  Rates  of  as  Fixed. — Each  public  utility  shall 
conform  its  depreciation  accounts  to  the  rates  so  as- 
certained, determined  and  fixed,  and  shall  set  aside  the 
moneys  so  provided  for  out  of  earnings  and  carry  the 
same  in  a  depreciation  fund  and  expend  such  fund  only 
for  such  purposes  and  under  such  rules  and  regula- 
tions, both  as  to  original  expenditure  and  subsequent 
replacement  as  the  Commission  may  prescribe.  The 
income  from  investments  of  moneys  in  such  fund  shall 
likewise  be  carried  in  such  fund.46 

§  251.     New   Construction — Certificate   from   Com- 
mission.— No  street  railroad  corporation,  gas  corpora- 
's ib. 

"  Section  49,  p.  42. 

Depreciation  in  value  of  a  public  utility, — as  a  waterworks  plant, — 
and  not  the  value  of  the  service  rendered  to  consumers  due  to  a  diminu- 
tion of  supply, — as  of  a  quantity  of  water  from  a  long-continued 
drought  from  which  the  surrounding  country  has  suffered  since  the 
fixing  of  the  rates, — may  be  considered  in  determining  the  reasonable- 
ness of  the  rates  as  fixed.  San  Diego  L.  &  T.  Co.  v.  Jasper,  189  U.  S. 
439,   23   Sup.   Ct.   571,  47  L.  ed.  892,  affirming  110  Fed.   702. 

'5  Section  49,  p.  42. 

*•  lb. 


198  CALIFORNIA   PUBLIC    UTILITIES   ACT.         §§  252,  253 

tion,  electrical  corporation,  telephone  corporation  or 
water  corporation  shall  henceforth  begin  the  construc- 
tion of  a  street  railroad,  or  of  a  line,  plant  or  system, 
or  of  any  extension  of  such  street  railroad,  or  line, 
plant,  or  system,  without  having  first  obtained  from 
the  Commission  a  certificate  that  the  present  or  future 
public  convenience  and  necessity  require  or  will  re- 
quire such  construction.47 

§  252.  Certificate  not  Required  When. — Pro- 
vided, that  this  section  shall  not  be  construed  to  re- 
quire any  such  corporation  to  secure  such  certificate 
for  an  extension  within  any  city  and  county  or  city 
or  town  within  which  it  shall  have  theretofore  law- 
fully commenced  operations,  or  for  an  extension  into 
territory  either  within  or  without  a  city  and  county 
or  city  or  town,  contiguous  to  its  street  railroad,  or 
line,  plant  or  system,  and  not  theretofore  served  by  a 
public  utility  of  like  character,  or  for  an  extension 
within  or  to  territory  already  served  by  it,  necessary 
in  the  ordinary  course  of  its  business.48 

§  253.  Interference  With  Other  Public  Util- 
ities.— And  provided,  further,  that  if  any  public  utility, 
in  constructing  or  extending  its  line,  plant,  or  system, 
shall  interfere  or  be  about  to  interfere  with  the  opera- 
tion of  the  line,  plant  or  system  of  any  other  public 
utility,  already  constructed,  the  Commission,  on  com- 
plaint of  the  public  utility  claiming  to  be  injuriously 
affected,  may,  after  hearing,  make  such  order  and  pre- 
scribe such  terms  and  conditions  for  the  location  of 
the  lines,  plants  or  systems  affected  as  to  it  may  seem 
just  and  reasonable.49 

47  Section  50  (a),  p.  43. 
♦8  lb. 
4»  lb. 


§  254         POWERS  AND  DUTIES  OF   RAILROAD   COMMISSION.  199 

§  254.    Franchises  and  Privileges. — No  public 

utility  of  a  class  specified  in  subsection  (a)  hereof  shall 
henceforth  exercise  any  right  or  privilege  under  any 
franchise  or  permit  hereafter  granted,  or  under  any 
franchise  or  permit  heretofore  granted  but  not  hereto- 
fore actually  exercised,  or  the  exejcise  of  which  has 
been  suspended  for  more  than  one  year,  without  first 
having  obtained  from  the  Commission  a  certificate  that 
public  convenience  and  necessity  require  the  exercise 
of  such  right  or  privilege.60 

§  255.  Right  to  Proceed  Under  Former  Fran- 
chises and  Privileges,  When. — Provided,  that  when  the 
Commission  shall  find,  after  hearing,  that  a  public 
utility  has  heretofore  begun  actual  construction  work 
and  is  prosecuting  such  work,  in  good  faith,  uninter- 
ruptedly and  with  reasonable  diligence  in  proportion 
to  the  magnitude  of  the  undertaking,  under  any  fran- 
chise or  permit  heretofore  granted  but  not  heretofore 
actually  exercised,  such  public  utility  may  proceed, 
under  such  rules  and  regulations  as  the  Commission 
may  prescribe,  to  the  completion  of  such  work,  and 
may,  after  such  completion,  exercise  such  right  or 
privilege.51 

§  256.  Invalid  Right  or  Privilege  not  Vali- 
dated.— And  provided,  further,  that  this  section  shall 
not  be  construed  to  validate  any  right  or  privilege  now 
invalid  or  hereafter  becoming  invalid  under  any  law 
of  this  state.52 

§  257.    Certified  Copies  of  Articles,  etc.,  to  be 

Filed. — Before  any  certificate  may  issue,  under  this 
section,  a  certified  copy  of  its  articles  of  incorporation 

so  Section  50  (b),  p.  43. 
6i  lb. 
62  lb. 


200  CALIFORNIA   PUBLIC    UTILITIES   ACT.         §§  258-260 

or  charter,  if  the  applicant  be  a  corporation,  shall  be 
filed  in  the  office  of  the  Commission.53 

§  258.    Evidence   of   Franchises,   etc.,   to   be 

Filed. — Every  applicant  for  a  certificate  shall  file  in 
the  office  of  the  Commission  such  evidence  as  shall  be 
required  by  the  Commission  to  show  that  such  appli- 
cant has  received  the  required  consent,  franchise  or 
permit  of  the  proper  county,  city  and  county,  municipal 
or  other  public  authority.64 

§  259.    Power  to  Issue  or  Review  Certificate. — 

The  Commission  shall  have  power,  after  hearing,  to 
issue  said  certificate,  as  prayed  for,  or  to  refuse  to  is- 
sue the  same,  or  to  issue  it  for  the  construction  of  a 
portion  only  of  the  contemplated  street  railroad,  line, 
plant  or  system,  or  extension  thereof,  or  for  the  partial 
exercise  only  of  said  right  or  privilege,  and  may  at- 
tach to  the  exercise  of  the  rights  granted  by  said  cer- 
tificate such  terms  and  conditions  as  in  its  judgment 
the  public  convenience  and  necessity  may  require.55 

§  260.    Franchises,  etc.,  yet  to  be  Secured — 

Order  for  and  Certificate  When  Secured. — If  a  public 
utility  desires  to  exercise  a  right  or  privilege  under  a 
franchise  or  permit  which  it  contemplates  securing, 
but  which  has  not  as  yet  been  granted  to  it,  such  public 
utility  may  apply  to  the  Commission  for  an  order  pre- 
liminary to  the  issue  of  the  certificate.  The  Commis- 
sion may  thereupon  make  an  order  declaring  that  it 
will  thereafter,  upon  application,  under  such  rules  and 
regulations  as  it  may  prescribe,  issue  the  desired  cer- 
tificate, upon  such  terms  and  conditions  as  it  may  des- 
ignate, after  the  public  utility  has  obtained  the  con- 
templated franchise  or  permit.    Upon  the  presentation 

53  Section  50   (c),  p.  43. 
6*  lb.,  p.  44. 
65  lb. 


§  2G1         POWERS  AND  DUTIES  OF  RAILROAD  COMMISSION.  201 

to  the  Commission  of  evidence  satisfactory  to  it  that 
such  franchise  or  permit  has  been  secured  by  such  pub- 
lic utility,  the  Commission  shall  thereupon  issue  such 
certificate.58 

§  261.  Transfer  of  Property,  Franchises,  etc.— Or- 
der Authorizing. — No  railroad  corporation,  street  rail- 
road corporation,  pipe-line  corporation,  gas  corpo- 
ration, electrical  corporation,  telephone  corporation, 
telegraph  corporation  or  water  corporation  shall  hence- 
forth sell,  lease,  assign,  mortgage  or  otherwise  dispose 
of  or  encumber  the  whole  or  any  part  of  its  railroad, 
street  railroad,  line,  plant  or  system,  necessary  or  use- 
ful in  the  performance  of  its  duties  to  the  public,  or 
any  franchise  or  permit  or  any  right  thereunder,  nor 
by  any  means  whatsoever,  direct  or  indirect,  merge  or 
consolidate  its  railroad,  street  railroad,  line,  plant  or 
system,  or  franchises  or  permits  or  any  part  thereof, 
with  any  other  public  utility,  without  having  first  se- 
cured from  the  Commission  an  order  authorizing  it  so 
to  do.57 

§  262.  Sale,  Lease,  etc.,  Without  Order  of  Au- 
thorization Void. — Every  such  sale,  lease,  assignment, 
mortgage,  disposition,  encumbrance,  merger  or  consoli- 
dation made  other  than  in  accordance  with  the  order 
of  the  Commission  authorizing  the  same  shall  be  void.58 

§  263.  Permission  or  Approval  not  to  Vali- 
date Void  or  Lapsed  Franchises,  etc.— The  permission 
and  approval  of  the  Commission  to  the  exercise  of  a 
franchise  or  permit  under  section  50  of  this  act* or  the 
sale,  lease,  assignment,  mortgage  or  other  disposition 
or  encumbrance  of  a  franchise  or  permit  under  this  sec- 
tion shall  not  be  construed  to  revive  or  validate  any 

5«    lb. 

67  Section  51   (a),  p.  44. 

68  lb. 


202  CALIFORNIA   PUBLIC    UTILITIES   ACT.         §§  264-267 

lapsed  or  invalid  franchise  or  permit,  or  to  enlarge  or 
add  to  the  powers  or  privileges  contained  in  the  grant 
of  any  franchise  or  permit,  or  to  waive  any  forfeiture.69 

§  264.    Construction  to  be   Given   Section.— 

Nothing  in  this  subsection  contained  shall  be  construed 
to  prevent  the  sale,  lease  or  other  disposition  by  any 
public  utility  of  a  class  designated  in  this  subsection 
of  property  which  is  not  necessary  or  useful  in  the  per- 
formance of  its  duties  to  the  public,  and  any^  sale  of 
its  property  by  such  public  utility  shall  be  conclusively 
presumed  to  have  been  of  property  which  is  not  useful 
or  necessary  in  the  performance  of  its  duties  to  the 
public,  as  to  any  purchaser  of  such  property  in  good 
faith  for  value.60 

§  265.    Stock  of  Other  Utility— Not  to  be  Pur- 

chased  or  Held  Without  Authority  of  Commission.— 
No  public  utility  shall  hereafter  purchase  or  acquire, 
take  or  hold,  any  part  of  the  capital  stock  of  any  other 
public  utility,  organized  or  existing  under  or  by  virtue 
of  the  laws  of  this  state,  without  having  been  first  au- 
thorized to  do  so  by  the  Commission.61 

§  266.  Assignment,  etc.,  of  Stock  Without  Author- 
ization, Void. — Every  assignment,  transfer,  contract  or 
agreement  for  assignment  or  transfer  of  any  stock  by 
or  through  any  person  or  corporation  to  any  corpora- 
tion or  otherwise  in  violation  of  any  of  the  provisions 
of  this  section  shall  be  void  and  of  no  effect,  and  no 
such  transfer  shall  be  made  on  the  books  of  any  public 
utility.62 

§  267.  Holding  of  Stock,  etc.,  Heretofore  Ac- 
quired, not  Affected.— Nothing  herein  contained  shall 

59  lb. 

60  lb. 

6i  Section  51  (b),  p.  45. 
62  lb. 


§268         POWERS  AND  DUTIES  OF  RAILROAD  COMMISSION.  203 

be  construed  to  prevent  the  holding  of  stock  heretofore 
lawfully  acquired.63 

§  268.  Power  to  Issue  Stock,  Bonds,  etc.— Special 
Privileges — Control  of. — The  power  of  public  utilities 
to  issue  stocks  and  stock  certificates,  and  bonds,  notes 
and  other  evidences  of  indebtedness  and  to  create  liens 
on  their  property  situated  within  this  state  is  a  special 
privilege,  the  right  of  supervision,  regulation,  restric- 
tion and  control  of  which  is  and  shall  continue  to  be 
vested  in  the  state,  and  such  power  shall  be  exercised 
as  provided  by  law  and  under  such  rules  and  regula- 
tions as  the  Commission  may  prescribe.6* 

63  ib. 

64  Section  52   (a),  p.  45. 

The  terms  and  conditions  upon  which  railroad  companies  may  be 
created,  the  powers  and  capital  stock  they  may  have,  the  purposes  for 
which  they  may  increase  their  capital  stock,  and  the  limitations  and 
conditions  to  be  imposed  upon  the  right  to  such  increase,  are  exclusively 
matters  for  legislative  action  which  cannot  be  delegated.  The  state 
having  created  such  corporations  and  conferred  upon  them,  for  public 
purposes,  great  and  extraordinary  powers  and  franchises,  including  the 
sovereign  power  of  eminent  domain,  and  the  right  to  levy  tolls  or  taxes 
upon  those  who  use  for  traffic  or  travel  the  modern  highways  and  railroads. 
It  logically  follows  that  the  legislature  has  the  undoubted  right  to  enact 
statutes  regulating  the  increase  and  disposition  of  their  capital  stock. 
In  the  exercise  of  this  right  it  may  pass  a  statute  providing  generally 
for  what  purposes  and  upon  what  terms,  conditions,  and  limitations  aa 
increase  of  capital  stock  may  be  made,  and  confer  upon  the  Commission 
the  administrative  duty  of  supervising  any  proposed  increase  of  stock. 
It  may  also  delegate  to  the  Commission  the  duty  of  finding  the  facts  ii 
each  particular  case,  and  authorize  and  require  it,  if  it  find  the  existenct 
of  facts  that  bring  the  case  within  the  statute,  to  allow  the  proposed 
increase;  otherwise  to  refuse  it.  Any  statute,  however,  which  attempts 
to  authorize  the  Commission  in  its  judgment  to  allow  an  increase  o» 
the  capital  stock  of  the  corporation  for  such  purposes  and  on  such 
terms  or  conditions  as  it  may  deem  advisable,  would  be  a  delegation  oi 
legislative  power  and  void.  State  v.  Great  Northern  R.  Co.,  100  Minn 
445,  111  N.  W.  289,  affirmed,  216  U.  S.  206,  54  L.  ed.  446. 

Even  where  an  act  or  charter  can  be  construed  as  conferring  upon  & 
corporation  the  power  to  issue  stock  without  limit,  nevertheless  the 
legislature  would  have  the  right  to  prescribe  such  reasonable  regulation* 
for  the  exercise  of  the  right  to  issue  stock  as  might  be  necessary  to 
prevent  fraud  in  the  issuing  of  fictitious  stock  and  to  protect  the  publio 


204  CALIFORNIA   PUBLIC   UTILITIES   ACT.         §§269,270 

§  269.    Purpose  for  Which  Bond,  etc.,  may  be 

Issued. — A  public  utility  may  issue  stocks  and  stock 
certificates,  and  bonds,  notes  and  other  evidences  of 
indebtedness  payable  at  periods  of  more  than  twelve 
months  after  the  date  thereof,  for  the  following  pur- 
poses and  no  others,  namely,  for  the  acquisition  of 
property,  or  for  the  construction,  completion,  extension 
or  improvement  of  its  facilities,  or  for  the  improve- 
ment or  maintenance  of  its  service,  or  for  the  discharge 
or  lawful  refunding  of  its  obligations,  or  for  the  reim- 
bursement of  moneys  actually  expended  from  income 
or  from  any  other  moneys  in  the  treasury  of  the  pub- 
lic utility  not  secured  by  or  obtained  from  the  issue 
of  stocks  or  stock  certificates,  or  bonds,  notes  or  other 
evidences  of  indebtedness  of  such  public  utility,  within 
five  years  next  prior  to  the  filing  of  an  application  with 
the  Commission  for  the  required  authorization,  for  any 
of  the  aforesaid  purposes  except  maintenance  of  ser- 
vice and  replacements,  in  cases  where  the  applicant 
shall  have  kept  its  accounts  and  vouchers  for  such  ex- 
penditures in  such  manner  as  to  enable  the  Commission 
to  ascertain  the  amount  of  moneys  so  expended  and 
the  purposes  for  which  such  expenditure  was  made.65 

§  270.    Power  of  Commission  on  Authorizing 

Bonds.— Provided,  that  such  public  utility,  in  addi- 
tion to  the  other  requirements  of  law,  shall  first  have 
secured  from  the  Commission  an  order  authorizing 
such  issue  and  stating  the  amount  thereof  and  the  pur- 
pose or  purposes  to  which  the  issue  or  the  proceeds 
thereof  are  to  be  applied,  and  that,  in  the  opinion  of 
the  Commission,  the  money,  property  or  labor  to  be 
procured  or  paid  for  by  such  issue  is  reasonably  re- 

from  the  consequences  thereof;  because  the  police  power  of  the  state 
cannot  be  abdicated.  State  v.  St.  Paul  M.  &  M.  E.  Co.,  98  Minn.  380, 
118  N.  W.  261;  State  v.  Great  Northern  B.  Co.,  100  Minn.  445,  111 
N.  W.  289. 

65  Section  52   (b),  p.  45. 


§  271         POWERS  AND  DUTIES  OF  RAILROAD  COMMISSION.  205 

quired  for  the  purpose  or  purposes  specified  in  the  or- 
der, and  that,  except  as  otherwise  permitted  in  the 
order  in  the  case  of  bonds,  notes  or  other  evidences  of 
indebtedness,  such  purpose  or  purposes  are  not,  in 
whole  or  in  part,  reasonably  chargeable  to  operating 
expenses  or  to  income.68 

§  271.  Hearing  to  Determine  Whether  to  Au- 
thorize Bond  Issue,  etc. — To  enable  it  to  determine 
whether  it  will  issue  such  order,  the  Commission  shall 
hold  a  hearing  and  may  make  such  additional  inquiry 
or  investigation,  and  examine  such  witnesses,  books, 
papers,  documents  and  contracts  and  require  the  filing 
of  such  data  as  it  may  deem  of  assistance.67 

§  272.    Commission    to    Fix    and    Determine 

Amount  of  Issue. — The  Commission  may  by  its  order 
grant  permission  for  the  issue  of  such  stocks  or  stock 
certificates,  or  bonds,  notes  or  other  evidences  of  in- 
debtedness in  the  amount  applied  for,  or  in  a  lesser 
amount,  or  not  at  all,  and  may  attach  to  the  exercise 
of  its  permission  such  condition  or  conditions  as  it  may 
deem  reasonable  and  necessary.68 

§  273.    Authorizing  Bond  Issue,  etc.,  Greater 

or  Less  Than  Authorized  Stock. — The  Commission  may 
authorize  issues  of  bonds,  notes  or  other  evidences  of 
indebtedness,  less  than,  equivalent  to  or  greater  than 
the  authorized  or  subscribed  capital  stock  of  a  public 
utility  corporation,  and  the  provisions  of  section  309 
and  456  of  the  Civil  Code  of  this  state,  in  so  far  as  they 
contain  inhibitions  against  the  creation  by  corpora- 
tions of  indebtedness,  evidenced  by  bonds,  notes  or 
otherwise,  in  excess  of  their  total  authorized  or  sub- 

66  ib. 

«7  lb.,  p.  46. 

68    Ib. 


206  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §§  274r-276 

scribed  capital  stock  shall  have  no  application  to  pub- 
lic utility  corporations.69 

§  274.    Application  of  Proceeds  of  Bond  Issue, 

etc.,  to  be  Made  as  Commission  Directs. — No  public 
utility  shall,  without  the  consent  of  the  Commission, 
apply  the  issue  of  any  stock  or  stock  certificate,  or 
bond,  note  or  other  evidence  of  indebtedness,  or  any 
part  thereof,  or  any  proceeds  thereof,  to  any  purpose 
not  specified  in  the  Commission's  order,  or  to  any  pur- 
pose specified  in  the  Commission's  order  in  excess  of 
the  amount  authorized  for  such  purpose,  or  issue  or 
dispose  of  the  same  on  any  terms  less  favorable 
than  those  specified  in  such  order,  or  a  modification 
thereof,70 

§  275.  Notes  may  be  Issued,  Without  Author- 
ization, When. — A  public  utility  may  issue  notes,  for 
proper  purposes  and  not  in  violation  of  any  provision 
of  this  act  or  any  other  act,  payable  at  periods  of  not 
more  than  twelve  months  after  the  date  of  issuance  of 
the  same,  without  the  consent  of  the  Commission,  but 
no  such  note  shall,  in  whole  or  in  part,  be  refunded  by 
any  issue  of  stocks  or  stock  certificates,  or  of  bonds, 
notes  of  any  term  or  character  or  any  other  evidence 
of  indebtedness,  without  the  consent  of  the  Commis- 
sion.71 

§  276.    Capitalization  of  Franchises,  etc.,  not 

to  be  Authorized. — The  Commission  shall  have  no 
power  to  authorize  the  capitalization  of  the  right  to  be 
a  corporation,  or  to  authorize  the  capitalization  of  any 
franchise  or  permit  whatsoever  or  the  right  to  own, 
operate  or  enjoy  any  such  franchise  or  permit,  in  ex- 
cess of  the  amount  (exclusive  of  any  tax  or  annual 

68    lb. 

70  lb. 

71  lb. 


§277         POWERS  AND  DUTIES  OF  RAILROAD   COMMISSION.  207 

charge)  actually  paid  to  the  state  or  to  a  political  sub- 
division thereof  as  the  consideration  for  the  grant  of 
such  franchise,  permit  or  right;  nor  shall  any  contract 
for  consolidation  or  lease  be  capitalized,  nor  shall  any 
public  utility  hereafter  issue  any  bonds,  notes  or  other 
evidences  of  indebtedness  against  or  as  a  lien  upon  any 
contract  for  consolidation  or  merger.72 

§  277.  Disposition  of  Proceeds  of  Bond  Is- 
sue, etc.,  to  be  Accounted  for. — The  Commission  shall 
have  the  power  to  require  public  utilities  to  account  for 
the  disposition  of  the  proceeds  of  all  sales  of  stocks 
and  stock  certificates,  and  bonds,  notes  and  other  evi- 
dences of  indebtedness,  in  such  form  and  detail  as  it 
may  deem  advisable,  and  to  establish  such  rules  and 
regulations  as  it  may  deem  reasonable  and  necessary 
to  insure  the  disposition  of  such  proceeds  for  the  pur- 
pose or  purposes  specified  in  its  order.73 

§  278.    Issue  of  Bonds,  Stock,  etc.,  Without 

Authorization,  Void — Effect  of  Failure  to  Authorize. — 
All  stock  and  every  stock  certificate,  and  every  bond, 
note  or  other  evidence  of  indebtedness,  of  a  public  util- 
ity, issued  without  an  order  of  the  Commission  author- 
izing the  same  then  in  effect  shall  be  void,  and  likewise 
all  stock  and  every  stock  certificate,  and  every  bond, 
note  or  other  evidence  of  indebtedness,  of  a  public  util- 
ity, issued  with  the  authorization  of  the  Commission, 
but  not  conforming  in  its  provisions  to  the  provisions, 
if  any,  which  it  is  required  by  the  order  of  authoriza- 
tion of  the  Commission  to  contain,  shall  be  void;  but 
no  failure  in  any  other  respect  to  comply  with  the 
terms  or  conditions  of  the  order  of  authorization  of 
the  Commission  shall  render  void  any  stock  or  stock 
certificate,  or  any  bond,  note  or  other  evidence  of  in- 

T2    lb. 

78  Section  52   (c),  p.  46. 


208  CALIFORNIA   PUBLIC    UTILITIES   ACT.         §§  279,  280 

debtedness,  except  as  to  a  corporation  or  person  taking 
the  same  otherwise  than  in  good  faith  and  for  value 
and  without  actual  notice.7* 

§  279.  Penalty  for  Issuing  Bonds,  etc.,  With- 
out Authorization,  and  for  Failure  to  Apply  Proceeds 
as  Directed. — Every  public  utility  which,  directly  or 
indirectly,  issues  or  causes  to  be  issued,  any  stock  or 
stock  certificate,  or  bond,  note  or  other  evidence  of 
indebtedness,  in  nonconformity  with  the  order  of  the 
Commission  authorizing  the  same,  or  contrary  to  the 
provisions  of  this  act,  or  of  the  constitution  of  this 
state,  or  which  applies  the  proceeds  from  the  sale 
thereof,  or  any  part  thereof,  to  any  purpose  other  than 
the  purpose  or  purposes  specified  in  the  Commission's 
order,  as  herein  provided,  or  to  any  purpose  specified 
in  the  Commission's  order  in  excess  of  the  amount  in 
said  order  authorized  for  such  purpose,  is  subject  to  a 
penalty  of  not  less  than  five  hundred  dollars  nor  more 
than  twenty  thousand  dollars  for  each  offense.75 

§  280.    Felony   to   Issue   Bonds,   Stock,   etc., 

Without  Authorization,  or  to  Apply  Otherwise  Than 
as  Directed. — Every  officer,  agent  or  employee  of  a 
public  utility,  and  every  other  person  who  knowingly 
authorizes,  directs,  aids  in,  issues  or  executes,  or  causes 
to  be  issued  or  executed,  any  stock  or  stock  certificate, 
or  bond,  note  or- other  evidence  of  indebtedness,  in 
nonconformity  with  the  order  of  the  Commission  au- 
thorizing the  same,  or  contrary  to  the  provisions  of 
this  act,  or  of  the  constitution  of  this  state,  or  who,  in 
any  proceeding  before  the  Commission,  knowingly 
makes  any  false  statement  or  representation  or  with 
knowledge  of  its  falsity  files  or  causes  to  be  filed  with 
the  Commission  any  false  statement  or  representation, 

74  Section   52    (d),   p.  47. 

75  Section  52   (e),  p.  47. 


§  281         POWERS  AND  DUTIES  OF  RAILROAD  COMMISSION.  209 

which  said  statement  or  representation  so  made,  filed 
or  caused  to  be  filed  may  tend  in  any  way  to  influence 
the  Commission  to  make  an  order  authorizing  the  issue 
of  any  stock  or  stock  certificate,  or  any  bond,  note  or 
other  evidence  of  indebtedness,  or  which  results  in  pro- 
curing from  the  Commission  the  making  of  any  such 
order,  or  who,  with  knowledge  that  any  false  statement 
or  representation  was  made  to  the  Commission,  in  any 
proceeding,  tending  in  any  way  to  influence  the  Com- 
mission to  make  such  order,  issues  or  executes  or  nego- 
tiates, or  causes  to  be  issued,  executed  or  negotiated 
any  such  stock  or  stock  certificate,  or  bond,  note  or 
other  evidence  of  indebtedness,  or  who,  directly  or  in- 
directly, knowingly  applies,  or  causes  or  assists  to  be 
applied  the  proceeds  or  any  part  thereof,  from  the  sale 
of  any  stock  or  stock  certificate,  or  bond,  note  or  other 
evidence  of  indebtedness,  to  any  purpose  not  specified 
in  the  Commission's  order,  or  to  any  purpose  specified 
in  the  Commission's  order  in  excess  of  the  amount  au- 
thorized for  such  purpose,  or  who,  with  knowledge 
that  any  stock  or  stock  certificate,  or  bond,  note  or 
other  evidence  of  indebtedness,  has  been  issued  or  exe- 
cuted in  violation  of  any  of  the  provisions  of  this  act, 
negotiates,  or  causes  the  same  to  be  negotiated,  shall 
be  guilty  of  a  felony.7' 

§  281.    State  not  Obligated  by  Authorization 

of  Bond  Issue,  etc. — No  provision  of  this  act,  and  no 
deed  or  act  done  or  performed  under  or  in  connection 
therewith,  shall  be  held  or  construed  to  obligate  the 
state  of  California  to  pay  or  guarantee,  in  any  manner 
whatsoever,  any  stock  or  stock  certificate,  or  bond, 
note  or  other  evidence  of  indebtedness,  authorized,  is- 
sued or  executed  under  the  provisions  of  this  act.71 

T6  Section  52   (f),  p.  47. 
"  Section  52  (g),  p.  48. 
14 


210  CALIFORNIA   PUBLIC    UTILITIES   ACT.         §§282,283 

§  282.    Issue  of  Bonds,  Stock,  etc.,  After  Act 

Takes  Effect,  Without  Prior  Authorization,  Void.— All 
stocks  and  stock  certificates,  and  bonds,  notes  and 
other  evidences  of  indebtedness  issued  by  any  public 
utility  after  this  act  takes  effect,  upon  the  authority 
of  any  articles  of  incorporation  or  amendments  thereto 
or  vote  of  the  stockholders  or  directors  filed,  taken  or 
had,  or  other  proceedings  taken  or  had,  previous  to  the 
taking  effect  of  this  act,  shall  be  void,  unless  an  order 
of  the  Commission  authorizing  the  issue  of  such  stocks 
or  stock  certificates,  or  bonds,  notes  or  other  evidences 
of  indebtedness  shall  have  been  obtained  from  the  Com- 
mission prior  to  such  issue.7" 

§  283.  Power  of  Commission  to  Impose  Con- 
ditions.— The  Commission  may  by  its  order  impose 
such  condition  or  conditions  as  it  may  deem  reasonable 
and  necessary.7* 

78  Section  52   (h),  p.  48. 
"  lb. 


PROCEDURE    BEFORE    COMMISSION    AND    COURTS.  211 


CHAPTER  IX. 

PROCEDURE    BEFORE    RAILROAD    COMMISSION    AND 
COURTS. 

Rule  for  Hearings — Rules  of  Evidence. 

Informalities  not  to  Prejudice. 

Process — Power  to   Issue. 

Extends  to  All  Parts  of  State— Service  of. 

Compensation   for  Serving. 

Witnesses — Documents    and    Papers. 

Fees  and  Mileage — By  Whom  Paid. 

Subpoenaed  by  Commission — Payment  of  Fees   and  Mile- 
age. 

May  Demand  Fees  and  Mileage — Exceptions. 

Fees  Demanded  not  Paid — Witness  Need  not  Attend. 

Fees  may  be  Collected  by  Suit. 

Traveling  on  Free  Transportation  not  to  Receive  Mileage. 

Court  may  Compel  Attendance  of,  With  Books  and  Papers. 

Refusal  to  Attend,  etc. — Report  to  Court,  Conditions  of. 

Order  of  Court  That  Witness  Appear — Service  of  Copy. 

Failure   to   Obey   Court's  Order  to   Appear — Contempt. 

Failure  to  Appear — Remedy  Provided  Cumulative. 

Deposition  of  may  be  Taken — Compelling  Attendance  for, 

With  Books,  etc. 

No   Person   shall   be   Excused   from   Testifying,   etc. — But 

not  to  be  Prosecuted. 

No  Person  Testifying  to  be  Exempt  from  Prosecution  for 

Perjury. 

Public  Utilities  not  Given   Immunity. 

Paper  Filed  With  Commission,  Certified  Copies  to  be  Evidence. 
Orders,   etc.,   of   Commission — To    be   in   Writing    and   Entered 

of  Record. 
§  307.     May    be    Recorded    by    County    Recorder,    When — Impart 

Notice. 

§  308.     Certificate  of  Note,  etc. — Recording. 

§  309.     Fees  to  be  Charged  and  Collected  by  Commission. 

§  3io.     No  Fee  When  Bond  Issue  for  Refunding,  Discharge,  etc. 

§  311.     No   Fee   for  Copies  of  Paper  or  Records,   When,  or  for 

Annual  Report. 
§  312.     To  be  Paid  into   State  Treasury  Once  a  Week — Detailed 

Statements. 
5  313.     Inspection  of  Books,  Papers  and  Documents. 

§  314.     Authority   Under   Seal   of   Commission   Required   When. 

§  315.     Written   Record  of  Testimony,  etc..  to  be   Filed. 

§  316.     Production  of  Books  and  Records  Kept  Outside  of  State. 
§  317.     Complaints. 


§ 

284. 

§ 

285. 

§ 

286. 

8 

287. 

§ 

288. 

§ 

289. 

§ 

290. 

5 

291. 

§ 

292. 

§ 

293. 

5 

294. 

§ 

295. 

§ 

296. 

§ 

297. 

§ 

298. 

§ 

299. 

§ 

300. 

§ 

301. 

§ 

302. 

§ 

303. 

§ 

304. 

§ 

305. 

§ 

306. 

212  CALIFORNIA   PUBLIC    UTILITIES   ACT. 

§  318.     To    be    Entered    by    Commission,    When — Signature. 

§  3i9.     Joinder  of  Grounds — Misjoinder  or  Nonjoinder  of  Parties, 

Immaterial — Rule   Applies   on  Review. 

§  320.     No   Dismissal   for   Want   of   Direct  Damage. 

§  321.     Copy   to  be  Served  on  Corporation,  etc. 

§  322.     Service  may  be  Made  upon  Whom,   and  How. 

§  323.     Fixing  Hearing — Ten  Days'  Notice. 

§  324.     Hearings — Who  may  Introduce  Evidence  at. 

§  325.     Process  and  Enforcing  Attendance  of  Witnesses. 

§  326.     Order  on,  to  be  Filed — Decision. 

§  327.     Copy  of  Order  to  be  Served. 

§  328.     Order  to  be  Operative  in   Twenty  Days — Exceptions. 

§  329.     Where  Order  cannot  be  Complied  With  in  Twenty  Days. 

§  330.     fuii    and   Complete   Record — Testimony. 

§  331.     Action  to  Review  Order — Transcript  on. 

§  332.     Action  to  Review  Order — Stipulating  Question. 

§  333.     Public  Utility  may  Complain. 
§  334.     Increase  in  Rates. 

§  335.     Hearing  on  Individual  Rate,  etc.— Not  to  Go  into  Effect 

Until   Ordered. 

§  336.     . Suspension  not  to  be  Beyond  Twenty  Days— Extension  of 

Period. 

§  337.     On  Hearing  Rate  to  be  Fixed  by  Commission. 

§  338.     Go  into  Effect  in  Thirty  Days  from  Filing,  Unless  Other- 
wise Ordered. 

§  339.     Commission  may  Change  Orders  and  Decisions. 

§  340.     Orders   and   Decisions — Conclusion   in   Collateral   Proceedings. 

§  341.     Rehearings — Who   may   Apply   for — Granted  When. 

§  342.     Necessary  to  Action  on  Review. 

§  343.     Application    to     Set    Forth     Specifically    Grounds— Other 

Grounds  Excluded. 

§  344.     Made  Ten  Days  or  More  Before  Order  Effective — Decision 

on. 

§  345.     Made  Less  Than   Ten  Days  Before   Order  Effective— De- 
cision for  Extension  of  Date. 

§  346.     Application   Granted   Without   Suspending   Order — Affirm- 
ance  of  Decision  Implied  When. 

§  347.     Application  for  not  to  Excuse  Noncompliance. 

§  348.     Abrogation,  Change  or  Modification  of  Order  on. 

§  349.     Orders  After  Rehearing— Effect  of  Original  Order. 

§  350.     Review — Application  for  Writ  of— When  to  be  Made. 

§  35i.     Writ  of  Returnable  When — Direction  of. 

§  352.     Hearing  on  Return  Day — Continuance. 

§  353.     New  Evidence  not  Allowed — To  be  Heard  upon  the  Record. 

§  354.     Extent  of  Review. 

8  355.     Findings  and  Conclusion  of  Commission  Final  on. 

§  356.     Right  to  Appear  at. 

§  357,     Judgment  of  Supreme  Court. 


PROCEDURE    BEFORE    COMMISSION    AND    COURTS.  213 

§  358.  Provisions  of  Code  of  Civil  Procedure  as  to  Writs  of  Re- 

view  Govern. 

§  359.  Jurisdiction  on. 

§  360.  Mandamus  to  Commission  on. 

§  3G1.  Suspension  of  Commission's  Order — None  Pending  Review. 

§  362.  Stay  by  Supreme  Court,  Notice. 

§  363.  Stay  Effective  When  Bond  Filed,  Only. 

§  364.  Stay  Granted — Money  to  be  Paid  into  Court  and  Im- 
pounded— Deposit  at  Interest. 

§  365.  Stay  Granted — Act  to  be  Kept  Under  Oath,  Condition  of — 
Penalty  for  Failure. 

§  366.  Additional    Securities   may   be   Required. 

§  367.  Disposition  of  Moneys  on  Final  Decision. 

§  368.  Moneys  not  Claimed — Advertisement. 

§  369.  Final  Disposition  of  Moneys  not  Claimed. 

§  370.  Court  Proceedings — Preferences. 

§  371.  Physical  Valuation — Hearings  for. 

§  372.  Thirty   Days'   Notice   in   Writing — Conditions   of. 

§  373.  Who  Entitled   to  Appear  at  and  Put  in  Evidence. 

§  374.  Scope   of  Inquiry — Evidence. 

§  375.  Findings  of  Fact  in  Writing  to  be  Filed. 

§  376.  Findings  of  Fact  Subject  to  Review. 

§  377.  Findings  of  Commission  Admissible  as  Evidence. 

§  378.  Further  Hearings  from  Time  to  Time. 

§  379.  Further   Hearing   shall   be   on   Written   Notice. 

§  380.  Findings     at     Supplemental     Hearings — Considered     with 

Original  Finding. 

§  381.  Excessive  or  Discriminatory  Charge — Reparation. 

§  382.  Failure   to   Comply   with   Order   of   Reparation — Action. 

§  383.  Complaints  Concerning  and  Petition  in  Action — Limita- 
tion. 

§  384.  Remedy  Provided  is  Cumulative. 

§  385.  Commission    shall    Enforce   Laws — Action   in   Name   of   People. 

§  386.  Attorney  General  and  District  Attorney  to  Aid. 

§  387.  Public  Utilities  Liable  for  Damages — Who  Entitled  to  Damages. 

§  388. Jurisdiction  of  Action — Who  may  Bring. 

§  389.  Recovery  by  Individuals,  etc.,  not  to  Affect  Right  of  State 

to  Penalties. 

§  390.  Effect  of  Act— Right  of  State  to  Penalties,  etc.,  not  Affected. 

§  391.  Penalties  Provided  Cumulative. 

§  392.  Summary  Proceedings — Injunction  to  Prevent  Violation  of 
Order,  etc. 

§  393.  Attorney  of  Commission  to  Proceed  in  Superior  Court. 

§  394.  Court  to  Fix  Hearing — Copy  of  Petition  to  be  Served. 

§  395.  Procedure    in    C;ise   of   Default. 

§  396.  Joinder  of  Parties — Discretion  of  Court. 

§  397.  Final  Judgment  on  Hearing, 

§  39S.  Appeal  to  Supreme  Court — How  Taken. 


214  CALIFORNIA   PUBLIC    UTILITIES   ACT.         §§  284-286 

§  399.  Penalties  for  Violation  by  Public  Utilities. 

S  400.  Each  Day's  Continuance  a  Separate  Offense. 

§  401.  Construction — Act  on  Omission  of   Officer,  etc. 

§  402.  Penalties  for  Violation  by  Officers,  etc. — Misdemeanor. 

§  403.  Penalties    for    Violation    by    Corporations    Other    Than    Public 

Utilities. 

§  404.  Penalties  for  Violations  by  Persons  Other  Than  Officers,  etc. 

§  405.  Suit  to  Recover  Penalties — Jurisdiction. 

§  406.  Brought  and  Prosecuted  by  Whom. 

§  407.  What  may  be  Recovered — Procedure  and  Evidence. 

§  408.  Disposition  of  Penalties  and  Costs  Recovered. 

§  409.  Compromise  or  Discontinuance  of  Action. 

§  410.  Contempt  Proceedings — Punishment. 

§  411.  Remedy   Cumulative   and   not   a   Bar   to    Other   Remedies 

Prescribed. 

§  284.    Rule  for  Hearings — Rules  of  Evidence. — All 

hearings  and  investigations  before  the  Commission  or 
any  commissioner  shall  be  governed  by  this  act  and  by 
rules  of  practice  and  procedure  to  be  adopted  by  the 
Commission,  and  in  the  conduct  thereof  neither  the 
Commission  nor  any  commissioner  shall  be  bound  by 
the  technical  rules  of  evidence.1 

§  285.  Informalities  not  to  Prejudice. — No  in- 
formality in  any  proceeding  or  in  the  manner  of  tak- 
ing testimony  before  the  Commission  or  any  commis- 
sioner shall  invalidate  any  order,  decision,  rule  or 
regulation  made,  approved  or  confirmed  by  the  Com- 
mission.2 

§  286.  Process — Power  to  Issue. — The  Commission 
and  each  commissioner  shall  have  power  to  issue  writs 
of  summons,  subpoenas,  warrants  of  attachment,  war- 
rants of  commitment  and  all  necessary  process  in  pro- 
ceedings for  contempt,  in  the  like  manner  and  to  the 
same  extent  as  courts  of  record.3 

i  Extraordinary  Session  1911,  c.  14,  §  53,  p.  48. 

2  lb. 

3  Section    54,   p.    48. 


§§  287-291      PROCEDURE  BEFORE  COMMISSION  AND  COURTS.      215 

§  287.    Extends  to  All  Parts  of  State— Service 

of. — The  process  issued  by  the  Commission,  or  any 
commissioner,  shall  extend  to  all  parts  of  the  state  and 
may  be  served  by  any  person  authorized  to  serve 
process  of  courts  of  record,  or  by  any  person  desig- 
nated for  that  purpose  by  the  Commission  or  a  com- 
missioner.* 

§  288.  Compensation  for  Serving. — The  per- 
son executing  any  such  process  shall  receive  such  com- 
pensation as  may  be  allowed  by  the  Commission,  not 
to  exceed  the  fees  now  prescribed  by  law  for  similar 
services,  and  such  fees  shall  be  paid  in  the  same  man- 
ner as  provided  herein  for  payment  of  the  fees  of  wit- 
nesses.5 

§  289.  Witnesses  —  Documents  and  Papers.— The 
Commission  and  each  commissioner  shall  have  power 
to  administer  oaths,  certify  to  all  official  acts,  and  to 
issue  subpoenas  for  the  attendance  of  witnesses  and 
the  production  of  papers,  waybills,  books,  accounts, 
documents  and  testimony  in  any  inquiry,  investigation, 
hearing  or  proceeding  in  any  part  of  the  state.6 

§  290.    Fees  and  Mileage— By  Whom  Paid.— 

Each  witness  who  shall  appear,  by  order  of  the  Com- 
mission or  a  commissioner,  shall  receive  for  his  at- 
tendance the  same  fees  and  mileage  allowed  by  law  to 
a  witness  in  civil  cases,  which  amount  shall  be  paid 
by  the  party  at  whose  request  such  witness  is  sub- 
poenaed.7 

§  291.    Subpoenaed  by  Commission — Payment 

of  Fees  and  Mileage. — When  any  witness  who  has  not 

*  lb. 
»  lb. 

e  Section  55   (a),  p.  49. 

*  lb. 


216  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §§  292-296 

been  required  to  attend  at  the  request  of  any  party- 
shall  be  subpoenaed  by  the  Commission,  his  fees  and 
mileage  shall  be  paid  from  the  funds  appropriated  for 
the  use  of  the  Commission  in  the  same  manner  as  other 
expenses  of  the  Commission  are  paid.8 

§  292.  May  Demand  Fees  and  Mileage— Ex- 
ceptions.— Any  witness  subpoenaed  except  one  whose 
fees  and  mileage  may  be  paid  from  the  funds  of  the 
Commission,  may,  at  the  time  of  service,  demand  the 
fee  to  which  he  is  entitled  for  travel  to  and  from  the 
place  at  which  he  is  required  to  appear,  and  one  day's 
attendance.9 

§  293.    Fees    Demanded    not    Paid — Witness 

Need  not  Attend. — If  such  witness  demands  such  fees 
at  the  time  of  service,  and  they  are  not  at  that  time 
paid  or  tendered,  he  shall  not  be  required  to  attend 
before  the  Commission  or  commissioner,  as  directed  in 
the  subpoena.10 

§  294.    Fees  may  be  Collected  by  Suit. — All 

fees  or  mileage  to  which  any  witness  is  entitled  under 
the  provisions  of  this  section  may  be  collected  by  ac- 
tion therefor  instituted  by  the  person  to  whom  such 
fees  are  payable.11 

§  295.    Traveling  on  Free  Transportation  not 

to  Receive  Mileage. — No  witness  furnished  with  free 
transportation  shall  receive  mileage  for  the  distance 
he  may  have  traveled  on  such  free  transportation.12 

§  296.    Court    may    Compel    Attendance    of, 

With  Books  and  Papers. — The  superior  court  in  and 

s  lb. 
»  lb. 

10  lb. 
ii  lb. 
12  lb. 


§§  297,  298      PROCEDURE  BEFORE  COMMISSION  AND  COURTS.      217 

for  the  county,  or  city  and  county,  in  which  any  in- 
quiry, investigation,  hearing  or  proceeding  may  be 
held  by  the  Commission  or  any  commissioner  shall 
have  the  power  to  compel  the  attendance  of  witnesses, 
the  giving  of  testimony  and  the  production  of  papers, 
including  waybills,  books,  accounts  and  documents,  as 
required  by  any  subpoena  issued  by  the  Commission 
or  any  commissioner.13 

§  297.    Refusal    to    Attend,    etc. — Report    to 

Court,  Conditions  of. — The  Commission  or  the  commis- 
sioner before  whom  the  testimony  is  to  be  given  or  pro- 
duced, in  case  of  the  refusal  of  any  witness  to  attend 
or  testify  or  produce  any  papers  required  by  such  sub- 
poena, may  report  to  the  superior  court  in  and  for  the 
county,  or  city  and  county,  in  which  the  proceeding 
is  pending,  by  petition,  setting  forth  that  due  notice 
has  been  given  of  the  time  and  place  of  attendance  of 
said  witness,  or  the  production  of  said  papers,  and  that 
the  witness  has  been  summoned  in  the  manner  pre- 
scribed in  this  act,  and  that  the  witness  has  failed  and 
refused  to  attend  or  produce  the  papers  required  by 
the  subpoena,  before  the  Commission  or  commissioner, 
in  the  cause  or  proceeding  named  in  the  notice  and 
subpoena,  or  has  refused  to  answer  questions  pro- 
pounded to  him  in  the  course  of  such  proceeding,  and 
ask  an  order  of  said  court,  compelling  the  witness  to 
attend  and  testify  or  produce  said  papers  before  the 
Commission.11 

§  298.     Order  of  Court  That  Witness  Appear 

— Service  of  Copy. — The  court,  upon  the  petition  of 
the  Commission  or  such  commissioner,  shall  enter  an 
order  directing  the  witness  to  appear  before  the  court 
at  a  time  and  place  to  be  fixed  by  the  court  in  such 

13  Section   55    (b),   p.   49. 
i*  lb. 


218  CALIFORNIA   PUBLIC   UTILITIES   ACT.         §§  299-301 

order,  the  time  to  be  not  more  than  ten  days  from  the 
date  of  the  order,  and  then  and  there  show  cause  why 
he  has  not  attended  and  testified  or  produced  said 
papers  before  the  Commission.  A  copy  of  said  order 
shall  be  served  upon  said  witness.16 

§  299.  Failure  to  Obey  Court's  Order  to  Ap- 
pear—Contempt.— If  it  shall  appear  to  the  court  that 
said  subpoena  was  regularly  issued  by  the  Commission 
or  a  commissioner,  the  court  shall  thereupon  enter  an 
order  that  said  witness  appear  before  the  Commission 
or  said  commissioner  at  the  time  and  place  fixed  in 
said  order,  and  testify  or  produce  the  required  papers, 
and  upon  failure  to  obey  said  order,  said  witness  shall 
be  dealt  with  as  for  contempt  of  court.18 

§  300.    Failure  to  Appear— Remedy  Provided 

Cumulative.— The  remedy  provided  in  this  subsection 
is  cumulative,  and  shall  not  be  construed  to  impair 
or  interfere  with  the  power  of  the  Commission  or  a 
commissioner  to  enforce  the  attendance  of  witnesses 
and  the  production  of  papers,  and  to  punish  for  con- 
tempt in  the  same  manner  and  to  the  same  extent  as 
courts  of  record.17 

§  301.  Deposition  of  may  be  Taken— Compel- 
ling Attendance  for,  With  Books,  etc.— The  Commis- 
sion or  any  commissioner  or  any  party  may,  in  any 
investigation  or  hearing  before  the  Commission,  cause 
the  deposition  of  witnesses  residing  within  or  without 
the  state  to  be  taken  in  the  manner  prescribed  by 
law  for  like  depositions  in  civil  actions  in  the  superior 
courts  of  this  state  and  to  that  end  may  compel  the 

15  lb. 

16  lb.,   p.   50. 

it  lb. 


§§  302,  303      PROCEDURE  BEFORE  COMMISSION  AND  COURTS.      219 

attendance  of  witnesses  and  the  production  of  books, 
waybills,  documents,  papers  and  accounts.18 

§  302.  No  Person  Shall  be  Excused  from  Tes- 
tifying, etc. — But  not  to  be  Prosecuted. — Xo  person 
shall  be  excused  from  testifying  or  from  producing  any 
book,  waybill,  document,  paper  or  account  in  any 
investigation  or  inquiry  by  or  hearing  before  the  Com- 
mission or  any  commissioner,  when  ordered  to  do  so, 
upon  the  ground  that  the  testimony  or  evidence,  book, 
waybill,  document,  paper  or  account  required  of  him 
may  tend  to  incriminate  him  or  subject  him  to  pen- 
alty or  forfeiture,  but  no  person  shall  be  prosecuted, 
punished  or  subjected  to  any  penalty  or  forfeiture  for 
or  on  account  of  any  act,  transaction,  matter  or  thing 
concerning  which  he  shall,  under  oath  have  testified 
or  produced  documentary  evidence.19 

§  303.     No  Person    Testifying  to  be    Exempt 

from  Prosecution  for  Perjury. — Provided,  that  no  per- 
son so  testifying  shall  be  exempt  from  prosecution  or 
punishment  for  any  perjury  committed  by  him  in  his 
testimony.20 

is  Section  55    (c),  p.  50. 

is  Section   55    (d),   p.   50. 

Immunity  of  witnesses,  provided  for  in  section  37  of  the  Oregon 
Railroad  Commission  Act  (Laws  1907,  c.  53,  p.  59),  extending  only  to 
natural  persons,  etc.,  is  modeled  upon  act  of  Congress  of  June  30,  1906 
(34  Stats,  at  Large,  798),  for  investigation  of  interstate  rates — proceed- 
ings before  Interstate  Commerce  Commission;  section  47  of  the  Oregon 
Railroad  Commission  Act  (Oregon  Laws,  1907,  c.  53,  p.  93)  is  identical 
with  section  21  of  the  Wisconsin  Railroad  Commission  Act,  and  the 
deduction  made  is  that  the  legislature  intended  by  the  Railroad  Com- 
mission Act  to  regulate  interstate  traffic  within  the  state  only,  and  did 
not  intend  or  seek  to  regulate  interstate  commerce  in  violation  of  the 
commerce  clause  of  the  federal  constitution.  Oregon  R.  &  Nav.  Co.  v. 
Campbell,  173  Fed.  980. 

»o  Section  55   (d),  p.  50. 


2'20  CALIFORNIA   PUBLIC    UTILITIES   ACT.         §§  304-307 

§  304.    Public  Utilities  not  Given  Immunity. — 

Nothing  herein  contained  shall  be  construed  as  in  any 
manner  giving  to  any  public  utility  immunity  of  any 
kind.21 

§  305.  Paper  Filed  With  Commission,  Certified 
Copies  to  be  Evidence. — Copies  of  all  official  docu- 
ments and  orders  filed  or  deposited  according  to  law 
in  the  office  of  the  Commission,  certified  by  a  commis- 
sioner or  by  the  secretary  under  the  official  seal  of  the 
Commission  to  be  true  copies  of  the  originals,  shall  be 
evidence  in  like  manner  as  the  originals.22 

§  306.  Orders,  etc.,  of  Commission — To  be  in  Writ- 
ing and  Entered  of  Record. — Every  order,  authoriza- 
tion or  certificate  issued  or  approved  by  the  Commis- 
sion under  any  provision  of  sections  38,  39,  40,  41,  43, 
50,  51  or  52  of  this  act  shall  be  in  writing  and  entered 
on  the  records  of  the  Commission.23 

§  307.    May  be  Recorded  by  County  Recorder, 

When — Impart  Notice. — Any  such  order,  authoriza- 
tion or  certificate,  or  a  copy  thereof,  or  a  copy  of  the 
record  of  any  such  order,  authorization  or  certificate, 
certified  by  a  commissioner  or  by  the  secretary  under 
the  official  seal  of  the  Commission  to  be  a  true  copy 
of  the  original  order,  authorization,  certificate  or  entry, 

21  lb. 

22  Section  56    (a),  p.  50. 

As  to  admissibility  of  public  rates  of  classification  and  schedule  as 
evidence,  and  their  effect  as  evidence  of  the  rates  of  charge  fixed  by 
the  Commission,  see  Chicago,  B.  &  Q.  E.  Co.  v.  Jones,  149  111.  361, 
37  N.  E.   247. 

A  schedule  of  rates  certified  by  the  secretary  of  the  Commission  is 
admissible  in  evidence  under  the  Iowa  statute  of  April  15,  1888,  "with- 
out further  proof."  Where  certified  by  the  Commission,  and  where 
the  identity  of  the  schedule  is  not  questioned,  a  defect  in  the  form  of 
the  certificate  is  immaterial.  Hooper  v.  Chicago,  M.  &  St.  P.  R.  Co., 
91   Iowa,   639,   60   N.  W.  487. 

23  Section  56    (b),  p.   50. 


§§  308,  309      PROCEDURE  BEFORE  COMMISSION   AND  COURTS.      221 

may  be  recorded  in  the  office  of  the  recorder  of  any 
county,  or  city  and  county,  in  which  is  located  the 
principal  place  of  business  of  any  public  utility  affected 
thereby,  or  in  which  is  situated  any  property  of  any 
such  public  utility,  and  such  record  shall  impart  no- 
tice of  its  provisions  to  all  persons.2* 

§  308.    Certificate  of  Note,  etc.— Recording. — 

A  certificate  under  the  seal  of  the  Commission  that 
any  such  order,  authorization  or  certificate  has  not 
been  modified,  stayed,  suspended  or  revoked  may  also 
be  recorded  in  the  same  offices  in  the  same  manner  and 
with  like  effect.26 

§  309.  Fees  to  be  Charged  and  Collected  by  Com- 
mission.— The  Commission  shall  charge  and  collect  the 
following  fees:  for  copies  of  papers  and  records  not 
required  to  be  certified  or  otherwise  authenticated  by 
the  Commission,  ten  cents  for  each  folio;  for  certified 
copies  of  official  documents  and  orders  filed  in  its 
office,  fifteen  cents  for  each  folio  and  one  dollar  for 
every  certificate  under  seal  affixed  thereto ;  for  certify- 
ing a  copy  of  any  report  made  by  a  public  utility,  two 
dollars;  for  each  certified  copy  of  the  annual  report 
of  the  Commission,  one  dollar  and  fifty  cents;  for  cer- 
tified copies  of  evidence  and  proceedings  before  the 
Commission,  fifteen  cents  for  each  folio;  for  certificate 
authorizing  an  issue  of  bonds,  notes  or  other  evidences 
of  indebtedness,  one  dollar  for  each  thousand  dollars 
of  the  face  value  of  the  authorized  issue  or  fraction 
thereof  up  to  one  million  dollars,  and  fifty  cents  for 
each  one  thousand  dollars  over  one  million  dollars  and 
up  to  ten  million  dollars,  and  twenty-five  cents  for 
each  one  thousand  dollars  over  ten  million    dollars, 

2*  lb. 

26  ib.,  p.  51. 


222  CALIFORNIA   PUBLIC    UTILITIES   ACT.         §§  310-313 


with  a  minimum  fee  in  any  case  of  two  hundred  and 
fifty  dollars. 


28 


§  310.  No  Fee  When  Bond  Issue  for  Refund- 
ing, Discharge,  etc.— Provided,  that  no  fee  shall  be  re- 
quired when  such  issue  is  made  for  the  purpose  of 
guaranteeing,  taking  over,  refunding,  discharging  or 
retiring  any  bond,  note  or  other  evidence  of  indebt- 
edness up  to  the  amount  of  the  issue  guaranteed,  taken 
over,  refunded,  discharged  or  retired.27 

§  311.  No  Fee  for  Copies  of  Paper  or  Rec- 
ords, When,  or  for  Annual  Report. — No  fees  shall  be 
charged  or  collected  for  copies  of  papers,  records  or 
official  documents,  furnished  to  public  officers  for  use 
in  their  official  capacity,  or  for  the  annual  reports  of 
the  Commission  in  the  ordinary  course  of  distribution, 
but  the  Commission  may  fix  reasonable  charges  for 
publications  issued  under  its  authority.28 

§  312.    To  be  Paid  into  State  Treasury  Once 

a  Week — Detailed  Statements. — All  fees  charged  and 
collected  under  this  section  shall  be  paid,  at  least  once 
each  week,  accompanied  by  a  detailed  statement 
thereof,  into  the  treasury  of  the  state  to  the  credit  of 
a  fund  to  be  known  as  the  "  Railroad  Commission 
Fund,"  which  fund  is  hereby  created.29 

§  313.  Inspection  of  Books,  Papers  and  Documents. 
The  Commission,  each,  commissioner  and  each  officer 
and  person  employed  by  the  Commission  shall  have 
the  right,  at  any  and  all  times,  to  inspect  the  accounts, 

ze  Section  57,  p.  51. 

Railroad  regulation  providing  for  attorneys'  fees  to  be  taxed  as  costs 
in  stipulated  proceedings  is  a  valid  provision.  See  Atlantic  Coast  Line 
R.  Co.  v.  Riverside  Mills,  219  U.  S.  186,  31  Sup.  Ct.  184,  55  L.  ed.  167. 

27  Section    57,   p.    51. 

28  lb. 

29  lb. 


§§  314-317      PROCEDURE  BEFORE  COMMISSION  AND  COURTS.      223 

books,  papers  and  documents  of  any  public  utility,  and 
the  Commission,  each  commissioner  and  any  officer  of 
the  Commission  or  any  employee  authorized  to  admin- 
ister oaths  shall  have  power  to  examine  under  oath  any 
officer,  agent  or  employee  of  such  public  utility  in  re- 
lation to  the  business  and  affairs  of  said  public  utility.80 

§  314.    Authority  Under  Seal  of   Commission 

Required  When. — Provided,  that  any  person  other  than 
a  commissioner  or  an  officer  of  the  Commission  de- 
manding such  inspection  shall  produce  under  the  hand 
and  seal  of  the  Commission  his  authority  to  make  such 
inspection.81 

§  315.     Written  Record  of  Testimony,  etc.,  to 

be  Filed. — And  provided  further,  that  a  written  record 
of  the  testimony  or  statement  so  given  under  oath  shall 
be  made  and  filed  with  the  Commission.82 

§  316.  Production  of  Books  and  Records  Kept  Out- 
side of  State. — The  Commission  may  require,  by  order 
served  on  any  public  utility  in  the  manner  provided 
herein  for  the  service  of  orders,  the  production  within 
this  state  at  such  time  and  place  as  it  may  designate, 
of  any  books,  accounts,  papers  or  records  kept  by  said 
public  utility  in  any  office  or  place  without  this  state, 
or,  at  its  option,  verified  copies  in  lieu  thereof,  so  that 
an  examination  thereof  may  be  made  by  the  Commis- 
sion or  under  its  direction.33 

§  317.  Complaints. — Complaint  may  be  made  by 
the  Commission  of  its  own  motion  or  by  any  corpora- 
tion or  person,  chamber  of  commerce,  board  of  trade, 
or  any  civic,  commercial,  mercantile,  traffic,  agricul- 

30  Section   58;  p.   51. 

si  lb. 

82  lb.,  p.   52. 

33  Section  59,  p.  52. 


224  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  318 

tural  or  manufacturing  association  or  organization  or 
any  body  politic  or  municipal  corporation,  by  petition 
or  complaint  in  writing,  setting  forth  any  act  or  thing 
done  or  omitted  to  be  done  by  any  public  utility  in- 
cluding any  rule,  regulation  or  charge  heretofore  estab- 
lished or  fixed  by  or  for  any  public  utility,  in  violation, 
or  claimed  to  be  in  violation,  of  any  provision  of  law 
or  of  any  order  or  rule  of  the  Commission.34 

§  318.    To  be  Entered  by  Commission,  When 

— Signature. — Provided,  that  no  complaint  shall  be 
entertained  by  the  Commission,  except  upon  its  own 
motion,  as  to  the  reasonableness  of  any  rates  or  charges 
of  any  gas,  electrical,  water  or  telephone  corporation, 
unless  the  same  be  signed  by  the  mayor  or  the  presi- 
dent or  chairman  of  the  board  of  trustees  or  a  major- 
ity of  the  council,  Commission,  or  other  legislative 
body  of  the  city  and  county,  or  city  or  town,  if  any, 
within  which  the  alleged  violation  occurred,  or    not 

si  Section   60,   p.   52. 

Initial  jurisdictional  question  in  every  hearing  before  the  Railroad 
Commission  on  complaint  is  whether,  in  the  given  case,  the  conduct 
of  the  railroad  company  is  unreasonable,  and  such  jurisdictional  fact 
should  be  shown  affirmatively  to  have  been  found  by  the  Commission, 
Minneapolis,  St.  P.  &  Ste.  M.  R.  Co.  v.  Railroad  Commission  (cone.  op. 
Marshall  &  Bashford,  JJ.),  136  Wis.  146,  116  N.  W.  915. 

Section  28,  Oregon  Railroad  Commission  Act  (Laws  1907,  c.  53,  p. 
82),  enlarges  the  common  law  by  permitting  a  municipal  organization 
to  make  complaint  of  unjust  discrimination,  and  empowering  the  Com- 
mission to  hear  and  determine  charges  of  unjust  discrimination  against 
a  locality,  and  to  give  the  requisite  relief.  Portland  R.  L.  &  P.  Co. 
v.  Railroad  Commission,  56  Or.  468,  105  Pac.  712. 

Under  section  28  of  the  Oregon  Railroad  Commission  Act  (Laws  1907, 
c.  53,  p.  82),  fares  may  be  changed  by  the  Railroad  Commission  where 
found  to  be  unjustly  discriminatory  although  not  unreasonable  for  the 
service  performed.  Portland  R.  L.  &  P.  Co.  v.  Railroad  Commission, 
56  Or.  468,  105  Pac.  709. 

Order  of  commissioners  cannot  be  said  to  be  unjust  or  unreasonable 
because  the  petitioners  get  less  than  they  called  for.  Mo.  O.  &  R.  Co. 
v.  State  (Okl.),  119  Pac.  117. 

As  to  the  practice  to  be  followed  in  such  cases,  see  St.  Louis  &  S.  F. 
R.  Co.  v.  Williams,  25  Okl.  662,  107  Pac.  428. 


§§319-321      PROCEDURE  BEFORE  COMMISSION   AND  ColiiT.S.      225 

less  than  twenty-five  consumers  or  purchasers  or  pros- 
pective consumers  or  purchasers,  of  such  gas,  elec- 
tricity, water  or  telephone  service.35 

§  319.     Joinder  of    Grounds  —  Misjoinder  or 

Nonjoinder  of  Parties,  Immaterial — Rule  Applies  on 
Review. — All  matters  upon  which  complaint  may  be 
founded  may  be  joined  in  one  hearing,  and  no  motion 
shall  be  entertained  against  a  complaint  for  misjoinder 
of  causes  of  action  or  grievances  or  misjoinder  or  non- 
joinder of  parties;  and  in  any  review  by  the  courts 
of  orders  or  decisions  of  the  Commission  the  same  rule 
shall  apply  with  regard  to  the  joinder  of  causes  and 
parties  as  herein  provided.36 

§  320.  No  Dismissal  for  Want  of  Direct  Dam- 
age.— The  Commission  shall  not  be  required  to  dis- 
miss any  complaint  because  of  the  absence  of  direct 
damage  to  the  complainant.37 

§  321.     Copy  to  be  Served    on    Corporation, 

etc. — Upon  the  filing  of  a  complaint,  the  Commission 
shall  cause  a  copy  thereof  to  be  served  upon  the  cor- 
poration or  person  complained  of.38 

35  Section  60,  p.  52. 

36  lb. 

37  lb. 

38  lb. 

Carrier  or  other  person  interested  having  been  notified  and  appear- 
ing before  the  Commission  and  contesting  the  matter  in  the  manner 
provided  by  statute  constitutes  due  process  of  law.  State  ex  rel.  Taylor 
v.  Missouri  Pac.  R.  Co..  76  Kan.  467,  487,  92  Pac.  606;  citing  Rail- 
road Commissioner  v.  Atlantic  Coast  Line  R.  Co.,  71  S.  C.  130,  50  S.  E. 
641 ;  Louisville  &  N.  R.  Co.  v.  Schmidt,  177  U.  S.  230,  20  Sup.  Ct.  620, 
44  L.  ed.   747.       . 

"It  is  no  wrong  opinion  to  contend  that  the  due  process  clause  of 
the  Fourteenth  Amendment  to  the  constitution  of  the  United  States 
does  not  control  merely  forms  of  procedure  in  state  courts  or  regulate 
practice  therein.  All  its  requirements  are  complied  with,  provided 
in  the  proceedings  which  are  claimed  to  have  been  due  process  of 
15 


225  CALIFORNIA   PUBLIC    UTILITIES  ACT.         §§  322-324 

§  322.    Service  may  be  Made  upon  Whom,  and 

How. — Service  in  all  hearings,  investigations,  and  pro- 
ceedings pending  before  the  Commission  may  be  made 
upon  any  person  upon  whom  a  summons  may  be  served 
in  accordance  with  the  provisions  of  the  Code  of  Civil 
Procedure  of  this  state,  and  may  be  made  personally 
or  by  mailing  in  a  sealed  envelope,  registered,  with 
postage  prepaid.39 

§  323.    Fixing  Hearing — Ten  Days'  Notice. — 

The  Commission  shall  fix  the  time  when  and  place 
where  a  hearing  will  be  had  upon  the  complaint  and 
shall  serve  notice  thereof,  not  less  than  ten  days  before 
the  time  set  for  such  hearing,  unless  the  Commission 
shall  find  that  public  necessity  requires  that  such 
hearing  be  held  at  an  earlier  date.40 

§  324.  Hearings — Who  may  Introduce  Evidence  at. 
At  the  time  fixed  for  any  hearing  before  the  Com- 
mission or  a  commissioner,  or  the  time  to  which  the 
same  may  have  been  continued,  the  complainant  and 
the  corporation  or  person  complained  of,  and  such  cor- 
porations or  persons  as  the  Commission  may  allow  to 
intervene,  shall  be  entitled  to  be  heard  and  to  intro- 
duce evidence.41 

law  the  person  affected  has  had  sufficient  notice  and  adequate  op- 
portunity has  been  offered  him  to  defend."  Louisville  &  N.  R.  Co.  v. 
Schmidt,   177  U.  S.  230,  236,  20  Sup.  Ct.  620,  44  L.  ed.   787. 

Notice  of  hearing  before  the  Board  of  Railroad  Commissioners  had 
upon  a  complaint  filed  with  such  board  and  appearance  and  participa- 
tion in  such  hearing  constitutes  due  process  of  law.  State  ex  rel. 
Taylor  v.  Missouri  Pac.  R.  Co.,  76  Kan.  467,  92  Pac.  606. 

Where  no  hearing  is  provided  for,  no  summons  or  notice  to  the  com- 
pany to  appear  before  the  Commission,  no  opportunity  provided  for  the 
company  to  introduce  witnesses  before  the  Commission,  and  the  like,  the 
law  is  invalid.  Chicago,  M.  &  St.  P.  R.  Co.  v.  Minnesota,  134  U.  S. 
418,    10    Sup.    Ct.    702,    33    L.    ed.    970. 

39  Section  60,  p.  52. 

40  lb. 

*i  Section  61   (a),  p.  53. 


§§  325-330      PROCEDURE  BEFORE  COMMISSION  AND  COURTS.      227 

§  325.    Process  and  Enforcing  Attendance  of 

Witnesses. — The  Commission  shall  issue  process  to  en- 
force the  attendance  of  all  necessary  witnesses.42 

§  326.    Order  on,  to  be    Filed  —  Decision. — 

After  the  conclusion  of  the  hearing,  the  Commission 
shall  make  and  file  its  order,  containing  its  decision.43 

§  327.    Copy  of  Order  to  be  Served. — A  copy 

of  such  order,  certified  under  the  seal  of  the  Commis- 
sion, shall  be  served  upon  the  corporation  or  person 
complained  of,  or  his  or  its  attorney.4* 

§  328.    Order  to  be  Operative  in  Twenty  Days 

— Exceptions. — Said  order  shall,  of  its  own  force,  take 
effect  and  become  operative  twenty  days  after  the 
service  thereof,  except  as  otherwise  provided,  and  shall 
continue  in  force  either  for  a  period  which  may  be  des- 
ignated therein  or  until  changed  or  abrogated  by  the 
Commission.46 

§  329.    Where  Order  cannot  be  Complied  With 

in  Twenty  Days. — If  an  order  cannot,  in  the  judgment 
of  the  Commission,  be  complied  with  within  twenty 
days,  the  Commission  may  grant  and  prescribe  such 
additional  time  as  in  its  judgment  is  reasonably  neces- 
sary to  comply  with  the  order,  and  may  on  applica- 
tion and  for  good  cause  shown,  extend  the  time  for 
compliance  fixed  in  its  order.46 

§  330.  Full  and  Complete  Record  —  Testi- 
mony.— A  full  and  complete  record  of  all  proceedings 
had  before  the  Commission  or  any  commissioner  on 

«  ib. 

«  ib. 

**  lb. 

«    Ib. 
«    lb. 


228  CALIFORNIA   PUBLIC    UTILITIES   ACT.         §§  331-333 

any  formal  hearing  had,  and  all  testimony  shall  be 
taken  down  by  a  reporter  appointed  by  the  Commis- 
sion, and  the  parties  shall  be  entitled  to  be  heard  in 
person  or  by  attorney.47 

§  331.    Action  to  Review    Order — Transcript 

on. — In  case  of  an  action  to  review  any  order  or  de- 
cision of  the  Commission,  a  transcript  of  such  testi- 
mony, together  with  all  exhibits  or  copies  thereof  in- 
troduced and  all  information  secured  by  the  Commis- 
sion on  its  own  initiative  and  considered  by  it  in  ren- 
dering its  order  or  decision,  and  of  the  pleadings, 
record  and  proceedings  in  the  cause,  shall  constitute 
the  record  of  the  Commission.48 

§  332.    Action  to  Review   Order — Stipulating 

Question. — Provided,  that  on  review  of  an  order  or 
decision  of  the  Commission,  the  petitioner  and  the 
Commission  may  stipulate  that  a  certain  question  or 
questions  alone  and  a  specified  portion  only  of  the  evi- 
dence shall  be  certified  to  the  supreme  court  for  its 
judgment,  whereupon  such  stipulation  and  the  question 
or  questions  and  the  evidence  therein  specified  shall 
constitute  the  record  on  review.49 

§  333.  Public  Utility  may  Complain. — Any  public 
utility  shall  have  a  right  to  complain  on  any  of  the 
grounds  upon  which  complaints  are  allowed  to  be 
filed  by  other  parties,  and  the  same  procedure  shall  be 
adopted  and  followed  as  in  other  cases,  except  that  the 
complaint  may  be  heard  ex  parte  by  the  Commission 
or  may  be  served  upon  any  parties  designated  by  the 
Commission.50 

47  lb. 

48  ib. 

49  ib. 

60  Section  62,  p.  53. 


§§  334-336      PROCEDURE  BEFORE  COMMISSION   AND  COURTS.      229 

§  334.  Increase  in  Rates. — No  public  utility  shall 
raise  any  rate,  fare,  toll,  rental  or  charge  or  so  alter 
any  classification,  contract,  practice,  rule  or  regulation 
as  to  result  in  an  increase  in  any  rate,  fare,  toll,  rental 
or  charge,  under  any  circumstances  whatsoever,  except 
upon  a  showing  before  the  Commission  and  a  finding 
by  the  Commission  that  such  increase  is  justified.61 

§  335.    Hearing  on  Individual  Rate,  etc. — Not 

to  Go  into  Effect  Until  Ordered. — Whenever  there  shall 
be  filed  with  the  Commission  any  schedule  stating  an 
individual  or  joint  rate,  fare,  toll,  rental,  charge,  clas- 
sification, contract,  practice,  rule  or  regulation,  not  in- 
creasing or  resulting  in  an  increase  in  any  rate,  fare, 
toll,  rental  or  charge,  the  Commission  shall  have  power, 
and  it  is  hereby  given  authority,  either  upon  complaint 
or  upon  its  own  initiative  without  complaint,  at  once, 
and  if  it  so  orders,  without  answer  or  other  formal 
pleadings  by  the  interested  public  utility  or  utilities, 
but  upon  reasonable  notice,  to  enter  upon  a  hearing 
concerning  the  propriety  of  such  rate,  fare,  toll,  rental, 
charge,  classification,  contract,  practice,  rule  or  regu- 
lation, and  pending  the  hearing  and  the  decision 
thereon  such  rate,  fare,  toll,  rental,  charge,  classifica- 
tion, contract,  practice,  rule  or  regulation  shall  not  go 
into  effect.52 

§  336.    Suspension  not  to  be  Beyond  Twenty 

Days — Extension  of  Period. — Provided,  that  the  period 
of  suspension  of  such  rate,  fare,  toll,  rental,  charge, 
classification,  contract,  practice,  rule  or  regulation 
shall  not  extend  beyond  one  hundred  and  twenty  days 
beyond  the  time  when    such    rate,  fare,  toll,  rental, 

8i  Section  63   (a),  p.  53. 

As  to  power  of  public  utilities  company  to  increase  rates  in  the 
absence  of  any  attempt  by  the  proper  body  to  fix  rates,  see  Oslmuriie 
v.  San  Diego  L.  &  T.  Co.,  178  U.  S.  22,  20  Sup.  Ct.  860,  44  L.  ed.  961. 

52  Section  63   (b),  p.  53. 


230  CALIFORNIA   PUBLIC   UTILITIES   ACT.         §§  337-339 

charge,  classification,  contract,  practice,  rule  or  regu- 
lation would  otherwise  go  into  effect  unless  the 
Commission,  in  its  discretion,  extends  the  period  of 
suspension  for  a  further  period  not  exceeding  six 
months.83 

§  337.  On  Hearing  Rate  to  be  Fixed  by  Com- 
mission.— On  such  hearing  the  Commission  shall  es- 
tablish the  rates,  fares,  tolls,  rentals,  charges,  classi- 
fications, contracts,  practices,  rules  or  regulations  pro- 
posed, in  whole  or  in  part,  or  others  in  lieu  thereof, 
which  it  shall  find  to  be  just  and  reasonable.54 

§  338.    Go  into  Effect  in  Thirty  Days  from 

Filing,  Unless  Otherwise  Ordered. — All  such  rates, 
fares,  tolls,  rentals,  charges,  classifications,  contracts, 
practices,  rules  or  regulations  not  so  suspended  shall, 
on  the  expiration  of  thirty  days  from  the  time  of  filing 
the  same  with  the  Commission,  or  of  such  lesser  time 
as  the  Commission  may  grant,  go  into  effect  and  be 
the  established  and  effective  rates,  fares,  tolls,  rentals, 
charges,  classifications,  contracts,  practices,  rules  and 
regulations,  subject  to  the  power  of  the  Commission, 
after  a  hearing  had  on  its  own  motion  or  upon  com- 
plaint, as  herein  provided,  to  alter  or  modify  the 
same.66 

§  339.  Commission  may  Change  Orders  and  Deci- 
sions.— The  Commission  may  at  any  time,  upon  notice 
to  the  public  utility  affected,  and  after  opportunity  to 
be  heard  as  provided  in  the  case  of  complaints,  rescind, 
alter  or  amend  any  order  or  decision  made  by  it.  Any 
order  rescinding,  altering  or  amending  a  prior  order 
or  decision  shall,  when  served  upon  the  public  utility 

63  lb.,  p.   54. 
e*  lb. 

65    lb. 


§§  340-343      PROCEDURE  BEFORE  COMMISSION  AND  COURTS.      231 

affected,  have  the  same  effect  as  is  herein  provided  for 
original  orders  or  decisions.68 

§  340.  Orders  and  Decisions — Conclusion  in  Collat- 
eral Proceedings. — In  all  collateral  actions  or  proceed- 
ings, the  orders  and  decisions  of  the  Commission 
which  have  become  final  shall  be  conclusive.57 

§  341.  Rehearings — Who  may  Apply  for — Granted 
When. — After  any  order  or  decision  has  been  made  by 
the  Commission,  any  party  to  the  action  or  proceeding, 
or  any  stockholder  or  bondholder  or  other  party 
pecuniarily  interested  in  the  public  utility  affected, 
may  apply  for  a  rehearing  in  respect  to  any  matters 
determined  in  said  action  or  proceeding  and  specified 
in  the  application  for  rehearing,  and  the  Commission 
may  grant  and  hold  such  rehearing  on  said  matters,  if 
in  its  judgment  sufficient  reason  therefor  be  made  to 
appear.68 

§  342.    Necessary  to  Action  on  Review. — No 

cause  of  action  arising  out  of  any  order  or  decision 
of  the  Commission  shall  accrue  in  any  court  to  any 
corporation  or  person  unless  such  corporation  or  per- 
son shall  have  made,  before  the  effective  date  of  said 
order  or  decision,  application  to  the  Commission  for  a 
rehearing.69 

§  343.    Application  to  Set  Forth   Specifically 

Grounds — Other  Grounds  Excluded. — Such  application 
shall  set  forth  specifically  the  ground  or  grounds  on 
which  the  applicant  considers  said  decision  or  order  to 
be  unlawful.     No  corporation  or  person  shall  in  any 

ea  Section  64,  p.   54.  , 

67  Section  65,  p.   54. 

es  Section  66,  p.  54. 
69   lb. 


232  CALIFORNIA   PUBLIC   UTILITIES   ACT.         §§  344-347 

court  urge  or  rely  on  any  ground  not  so  set  forth  in 
said  application.60 

§  344.    Made  Ten  Days  or  More  Before  Order 

Effective— Decision  on.— Any  application  for  a  rehear- 
ing made  ten  days  or  more  before  the  effective  date  of 
the  order  as  to  which  a  rehearing  is  sought,  shall  be 
either  granted  or  denied  before  such  effective  date,  or 
the  order  shall  stand  suspended  until  such  application 
is  granted  or  denied.81 

§  345.    Made   Less   Than   Ten   Days   Before 

Order  Effective — Decision  for  Extension  of  Date. — 
Any  application  for  a  rehearing  made  within  less  than 
ten  days  before  the  effective  date  of  the  order  as  to 
which  a  rehearing  is  sought,  and  not  granted  within 
twenty  days,  may  be  taken  by  the  party  making  the  ap- 
plication to  be  denied,  unless  the  effective  date  of  the 
order  is  extended  for  the  period  of  the  pendency  of  the 
application.62 

§  346.  Application  Granted  Without  Suspend- 
ing Order— Affirmance  of  Decision  Implied  When.— If 
any  application  for  a  rehearing  be  granted  without  a 
suspension  of  the  order  involved,  the  Commission  shall 
forthwith  proceed  to  hear  the  matter  with  all  dispatch 
and  shall  determine  the  same  within  twenty  days  after 
final  submission,  and  if  such  determination  is  not  made 
within  said  time,  it  may  be  taken  by  any  party  to  the 
rehearing  that  the  order  involved  is  affirmed.63 

§  347.  Application  for  not  to  Excuse  Non- 
compliance.— An  application  for  rehearing  shall  not 

eo  lb.,  p.  55. 
6i  lb. 

62  lb. 

63  lb. 


§§  348-350      PROCEDURE  BEFORE  COMMISSION  AND  COURTS.      233 

excuse  any  corporation  or  person  from  complying  with 
and  obeying  any  order  or  decision,  or  any  requirement 
of  any  order  or  decision  of  the  Commission  theretofore 
made,  or  operate  in  any  manner  to  stay  or  postpone 
the  enforcement  thereof,  except  in  such  cases  and  upon 
such  terms  as  the  Commission  may  by  order  direct.6* 

§  348.  Abrogation,  Change  or  Modification  of 
Order  on. — If,  after  such  rehearing  and  a  considera- 
tion of  all  the  facts,  including  those  arising  since  the 
making  of  the  order  or  decision,  the  Commission  shall 
be  of  the  opinion  that  the  original  order  or  decision 
or  any  part  thereof  is  in  any  respect  unjust  or  unwar- 
ranted, or  should  be  changed,  the  Commission  may 
abrogate,  change  or  modify  the  same.65 

§  349.    Orders    After    Rehearing  —  Effect  of 

Original  Order. — An  order  or  decision  made  after  such 
rehearing  abrogating,  changing  or  modifying  the  orig- 
inal order  or  decision  shall  have  the  same  force  and 
effect  as  an  original  order  or  decision,  but  shall  not 
affect  any  right  or  the  enforcement  of  any  right  aris- 
ing from  or  by  virtue  of  the  original  order  or  decision 
unless  so  ordered  by  the  Commission.69 

§  350.  Review— Application  for  Writ  of— When 
to  be  Made. — Within  thirty  days  after  the  application 
for  a  rehearing  is  denied,  or,  if  the  application  is 
granted,  then  within  thirty  days  after  the  rendition  of 
the  decision  on  rehearing,  the  applicant  may  apply  to 
the  supreme  court  of  this  state  for  a  writ  of  certiorari 
or  review  (hereinafter  referred  to  as  a  writ  of  review) 
for  the  purpose  of  having  the  lawfulness  of  the  orig- 

s*  lb. 

65  lb. 

66  lb. 


234  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  350 

inal  order  or  decision  or  the  order    or    decision  on 
rehearing  inquired  into  and  determined.67 

67  Section  67,  p.  55. 

Rate  fixed  and  affirmed  on  rehearing  may  be  reviewed  on  appeal, 
although  the  time  provided  has  expired,  where  such  rate  continues  until 
changed,  or  where  some  question  of  law  is  involved,  the  decision  of 
which  may  affect  the  future  action  of  the  authority  or  board  charged 
with  the  duty  of  fixing  rates.  See  Boise  City  Irr.  &  L.  Co.  v.  Clark, 
131  Fed.  415,  65  C.  C.  A.  406. 

Inquiry  by  the  court  as  to  the  reasonableness  of  a  schedule  of  rates 
or  other  regulation,  whether  made  by  the  legislature  or  through  a  Com- 
mission, is  purely  a  judicial  inquiry,  and  the  legislature  may  expressly 
consign  the  power  upon  the  courts.  State  ex  rel.  Taylor  v.  Missouri- 
Pac.  R.  Co.,  76  Kan.  467,  485,  92  Pac.  606;  citing  Reagan  v.  Farmers' 
L.  &  T.  Co.,  154  U.  S.  362,  14  Sup.  Ct.  1047,  38  L.  ed.  1014;  Smyth 
v.  Ames,  169  U.  S.  466,  18  Sup.  Ct.  418,  42  L.  ed.  819;  St.  L.  &  S. 
F.  R.  Co.  v.  Gill,  165  U.  S.  49,   15  Sup.  Ct.  484,  39  L.  ed.  567. 

The  provision  of  the  statute  providing  for  the  contingency  of  a 
review  of  the  order  of  the  Commission  fixing  the  rate  or  service,  and 
upheld  as  not  unreasonable  or  set  aside  as  unreasonable,  is  within  the 
power  of  the  legislature.  See  Minneapolis,  St.  P.  &  Ste.  Marie  R.  Co. 
v.  Railroad  Commission,  136  Wis.   146,  116  N.  W.  915. 

For  relief  against  an  unlawful  order  of  the  Commission,  a  party 
affected  is  entitled  to  sue  in  any  court,  state  or  federal,  having  juris- 
diction, and  the  penalties  imposed  by  section  53  as  above  enumerated 
applied  to  the  single  offense  of  a  refusal  or  failure  to  obey  the  order 
of  the  Railroad  Commission,  not  to  a  repetition  of  offenses  from  day 
to  day  or  at  intervals  as  long  as  the  carrier  continues  in  the  refusal 
to  obey  the  order  of  the  Commission.  Oregon  R.  &  Nav.  Co.  v.  Campbell, 
173  Fed.  957,  989,  distinguishing  Ex  parte  Young,  209  U.  S.  123,  28 
Sup.   Ct.  441,   52  L.   ed.   714,   13  L.  R.   A.,  N.   S.,  932. 

Courts  reviewing  the  orders  and  mandates  of  the  Railroad  Commission 
are  not  required  to  exercise  any  legislative  power.  They  are  not  to 
ascertain  and  disclose  rates  or  to  declare  a  rule  of  law  unreasonable; 
they  are  merely  to  exercise  judicial  power  in  determining  whether  the 
"order"  of  the  Commission  is  reasonable  or  unreasonable ;  if  reasonable, 
to  confirm  it;  if  unreasonable,  to  set  it  aside,  leaving  the  Commission 
free  to  make  further  investigations  and  take  further  action.  The  con- 
ferring of  such  authority  upon  courts  of  law  is  well  within  the  legisla- 
tive power.  See  Minneapolis,  St.  P.  &  Ste.  M.  R.  Co.  v.  Railroad 
Commission,   136   Wis.   146,   116    N.   W.   915. 

Courts  cannot  be  empowered  by  statute  to  review  or  set  aside  as  un- 
reasonable acts  of  the  legislature  which  are  not  in  conflict  with  state 
or  federal  constitutions  or  with  some  supreme  federal  law.     See  Minne- 


§  351  PROCEDURE  BEFORE   COMMISSION   AND   COURTS.  235 

§  351.    Writ  of,  Returnable  When— Direction 

of. — Such  writ  shall  be  made  returnable  not  later  than 
thirty  days  after  the  date  of  the  issuance  thereof,  and 

apolis,  St.  P.  &  Ste.  Marie  R.  Co.  v.  Railroad  Commission,  136  Wis. 
146,   116   N.   W.   915. 

Courts  should  not  interfere  with  the  determination  and  order  of  the 
Railroad  Commission  except  in  those  cases  where  they  are  clearly  re- 
quired to  do  so.  See  Minneapolis,  St.  P.  &  Ste.  Marie  R.  Co.  v.  Rail- 
road Commission,  136  Wis.  146,  116  N.  W.  915. 

In  an  action  to  review  the  order  of  the  Commission  as  unlawful  or 
unreasonable,  the  burden  is  upon  the  plaintiff  to  show  such  fact  by 
"clear  and  satisfactory"  evidence.  Minneapolis,  St.  P.  &  Ste.  M.  R. 
Co.  v.  Railroad  Commission,  136  Wis.   146,  165,   116  N.  W.  915. 

The  Wisconsin  Railroad  Commission  Act  of  September  15,  1906,  pro- 
vides that  "in  all  trials  under  this  section  the  burden  of  proof  shall  be 
upon  the  plaintiff  to  show  by  clear  and  satisfactory  evidence  that  the 
order  of  the  Commission  complained  of  is  unlawful  or  unreasonable, 
as  the  case  may  be."  Procedure  under  this  provision  discussed  and 
determined  in  Minneapolis,  St.  P.  &  Ste.  M.  R.  Co.  v.  Railroad  Commis- 
sion,  136  Wis.   146,  116  N.  W.  915. 

"Clear  and  satisfactory"  evidence,  as  used  in  the  Wisconsin  Railroad 
Commission  Act  of  October  15,  1906,  is  significant,  for  the  reason  that 
at  the  time  of  the  enactment  of  that  statute  the  phrase  was  used  in  the 
law  of  that  state  to  describe  a  degree  of  proof  greater  than  a  pre- 
ponderance of  evidence,  and  such  as  was  necessary  in  order  to  establish 
fraud  on  proving  a  mistake  in  a  written  instrument.  Minneapolis,  St. 
P.  &  Ste.  M.  R,  Co.  v.  Railroad  Commission,  136  Wis.  146,  166,  116 
N.  W.  915.  See  Bannon  v.  Insurance  Company  of  North  America, 
115  Wis.  250,  258,  91  N.  W.  666;  Shaw  v.  Gilbert,  111  Wis.  165,  86 
N.  W.  188;  Dallman  v.  Clasen,  116  Wis.  113,  117,  92  N.  W.  565;  Har- 
rigan  v.  Gilchrist,  121  Wis.  127,  313,  99  N.  W.  909;  Parker  v.  Hull, 
71   Wis.   368;   37   N.  W.   351,   5   Am.   St.   Rep.   224. 

Supreme  court  acts  as  a  judicial  tribunal  in  disposing  of  matters 
of  dispute  between  railroad  and  Commission,  not  as  a  mere  administra- 
tive board  supervisory  of  the  acts  of  the  Railroad  Commission.  Morgan's 
La.  &  T.  R.  &  S.  S.  Co.  v.  Railroad  Commission,  109  La.  247,  33  So.  24. 

"No  rate  is  irrevocably  fixed  by  the  state  until  the  matter  has  been 
laid  before  the  body  having  the  last  word."  Prentis  v.  Atlantic  Coast 
Line,  211  U.   S.   210,   29   Sup.   Ct.   67,  53   L.  ed.   150. 

Compare  Smyth  v.  Ames,  167  U.  S.  466,  18  Sup.  Ct.  418,  42  L.  ed.  819. 

Review  by  supreme  court  was  said  not  to  be  conferred  by  the  Wis- 
consin Act  unless  the  order  of  Commission  complained  of  was  con- 
fiscatory in  its  character  and  effect.  This  contention  was  denied  by  the 
supreme    court,    which    held    that    "unlawful    and    unreasonable"  in  the 


236  CALIFORNIA   PUBLIC   UTILITIES   ACT.  §§  352-354 

shall  direct  the  Commission  to  certify  its  record  in 
the  case  to  the  court.68 

§  352.    Hearing  on  Return  Day— Continuance. 

On  the  return  day,  the  cause  shall  be  heard  by  the 
supreme  court,  unless  for  a  good  reason  shown  the 
same  be  continued.69 

§  353.    New   Evidence   not   Allowed— To   be 

Heard  upon  the  Record.— No  new  or  additional  evi- 
dence may  be  introduced  in  the  supreme  court,  but  the 
cause  shall  be  heard  on  the  record  of  the  Commission 
as  certified  to  by  it.70 

§  354.    Extent  of  Review.— The  review  shall 

not  be  extended  further  than  to  determine  whether  the 
Commission  has  regularly  pursued  its  authority,  in- 
cluding a  determination  of  whether  the  order  or  de- 
statute  meant  "confiscatory,"  and  that  the  statute  authorizing  a  review 
by  the  court  was  valid  and  imposes  upon  the  court  duties  which  it 
may  not  disregard.  Minneapolis,  St.  P.  &  Ste.  M.  R.  Co.  v.  Railroad 
Commission,  136  Wis.  146,  166,  116  N.  W.  915.  (Wisconsin  Constitu- 
tion, article  VIII,  section  6,  seems  to  forbid  any  interpretation  except 
that  given  by  the  court.) 

Order  of  Commission  being  separable  and  a  part  of  it  without 
error,  while  the  balance  is  erroneous,  the  part  without  error  will  be 
sustained  and  the  erroneous  part  reversed  or  set  aside.  St.  Louis  & 
S.  F.  R.  Co.  v.  Williams,   25  Okl.  662,  107  Pac.  428. 

Where  the  rates  established  by  the  Commission  are  not  unreasonable, 
there  can  be  no  taking  of  the  carrier's  property  without  due  process 
of  law.     Oregon  R.  &  Nav.  Co.  v.  Campbell,  173  Fed.  957,  990. 

68  Section    67,   p.    55. 

e»  lb. 

to  lb.,  p.  56. 

As  to  judicial  notice  taken  regarding  conditions  within  the  state  on 
appeal  from  order  of  Railroad  Commission  directing  train  service  or 
roads,  see  St.  Louis  &  S.  F.  R.  Co.  v.  Williams,  25  Okl.  662,  107  Pac.  428. 

Court  may,  doubtless,  for  purpose  of  comparison  and  to  aid  it  in  ascer- 
taining how  far  the  order  diverges  from  a  reasonable  standard,  take 
evidence  of  and  consider  criteria  offered;  but  this  is  for  the  purpose 
of  comparison  only.  The  court  cannot  regulate,  adjudicate  or  declare 
the  statutory  standard.  Minneapolis,  St.  P.  &  Ste.  M.  R.  Co.  v.  Rail- 
road  Commission,   136   Wis.    146,   165,    116   N.   W.   915. 


§  354  PROCEDURE  BEFORE   COMMISSION   AND   COURTS.  237 

cision  under  review  violates  any  right  of  the  petitioner 
under  the  constitution  of  the  United  States  or  of  the 
state  of  California.71 

7i  Section  67,  p.  56. 

Final  tribunal  and  arbiter  is  not  the  judiciary  but  the  legislature. 
Chicago,  B.  &  Q.  R.   Co.  v.  Jones,  149   111.  361,  37  N.  E.  247. 

Legislature  has  power  to  declare  what  is  a  reasonable  compensation  and 
to  fix  reasonable  maximum  rates  of  carriage,  but  in  the  absence  of 
statutory  regulation  upon  the  subject,  the  courts  must  decide  what  is  a 
reasonable  rate.  Chicago,  B.  &  Q.  R.  Co.  v.  Jones,  149  111.  361,  375, 
37  N.  E.  247. 

The  legislature  having  power  to  fix  what  is  a  reasonable  rate,  the 
courts  must  decide  for  the  railroad  companies,  when  controversies  arise, 
what  is  a  reasonable  rate.  Chicago,  B.  &  Q.  R.  Co.  v.  Iowa,  94  U.  S. 
195,   24  L.  ed.  95. 

Court  to  judge  of  reasonableness  of  freight  charged.  Guard  v.  Col- 
land,  6  M.  &  S.  70;  Lowder  v.  Heirons,  2  Moo.  102;  Baxendale  v.  G. 
W.  R.  Co.,  5  C.  B.,  N.  S.,  330. 

Statute  or  order  of  Railroad  Commission  fixing  rates  of  transportation 
is  not  to  te  interfered  with,  except  upon  clear  and  satisfactory  evidence 
showing  that  it  is  unjust  and  unreasonable.  In  Matter  of  Auburn  & 
W.  R.  Co.,  37  App.  Div.  162,  55  N.  Y.  Supp.  895. 

When  legislature  declares  that  certain  charges  shall  be  reasonable  or 
allowed,  the  common-law  rule  to  that  effect  can  prevail,  and  leave  the 
matter  there.  Resort  may  be  had  to  the  court  to  inquire  judicially 
whether  the  charges  are  reasonable.  Chicago,  B.  &  Q.  R.  Co.  v.  Jones, 
149  111.  361,  37  N.  E.  247. 

Courts  are  not  by  the  statute  authorized  to  investigate  the  subject 
anew,  to  put  itself  in  the  place  of  the  Commission  and  search  for  rea- 
sonable and  just  rates  with  power  to  substitute  its  own  judgment  of 
what  is  reasonable  and  just  for  the  judgment  of  the  commissioners. 
Minneapolis,  St.  P.  &  Ste.  M.  R.  Co.  v.  Railroad  Commission,  136  Wis. 
146,  164,  116  N.  W.  915. 

Court  is  not  given  authority  to  search  for  or  disclose  or  declare  the 
"reasonable  and  just"  rates  or  service  provided  for  by  the  act,  but 
merely  to  determine  whether  the  order  of  the  Commission  is  "unreason- 
able"— quite  a  different  thing.  The  conferring  of  such  power  upon 
the  courts  was  clearly  within  the  authority  of  the  legislature.  In  per- 
forming the  functions  required  of  them  the  courts  are  not  to,  and  do 
not,  exercise  legislative  power,  do  not  ascertain  and  disclose  rates,  do 
not  declare  any  rules  or  any  law  unreasonable,  but  merely  exercise 
judicial  power  to  ascertain  and  determine  whether  the  Commission  has 
so  far  failed  in  its  search  for  different  lawful,  just  and  reasonable 
rates,  not  to  find  and  declare  that  which  is  unreasonable. 


238  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  355 

§  355.  Findings  and  Conclusion  of  Commis- 
sion Final  on. — The  findings  and  conclusions  of  the 
Commission  on  questions  of  fact  shall  be  final  and  shall 

Minneapolis,  St.  P.  &  Ste.  M.  E.  Co.  v.  Eailroad  Commission,  136  Wis. 
146,  165,  116  N.  W.  915. 

The  court  is  not  investigating  for  the  purpose  of  establishing  a  fixed 
point.  The  question  whether  the  order  is  within  the  field  of  reason  or 
outside  of  its  boundaries  is  the  only  question  before  the  court.  This 
is  quite  a  different  question  from  that  which  was  before  the  Commis- 
Bion  on  the  fixing  of  the  order.  Minneapolis,  St.  P.  &  Ste.  M.  E.  Co. 
v.  Eailroad  Commission,  136  Wis.  146,   165,  116  N.  W.  915. 

Courts  reviewing  an  order  or  mandate  of  the  Eailroad  Commission 
are  not  to  determine  whether  the  rate  or  service  fixed  by  the  Commis- 
sion is  just  and  reasonable,  but  to  determine  whether  the  "order"  is 
unreasonable  or  unjust;  and  if  the  court  finds  that  such  order  is 
such  a  one  that  reasonable  men  might  well  differ  as  to  its  correctness, 
the  court  cannot  say  that  it  is  unreasonable.  See  Minneapolis,  St.  P. 
&  St.  M.  E.  Co.  v.  Eailroad  Commission,  136  Wis.  146,  116  N.  W.  915. 

Eeasonableness  of  rates  fixed  by  Commission  being  questioned,  evi- 
dence showing  what  carriers  in  other  states  charge  is  not  admissible, 
where  there  is  no  showing  that  conditions  are  similar.  Hooper  v.  Chi- 
cago, M.  &  St.  P.  E.  Co.,  91  Iowa,  639,  60  N.  W.  487. 

Full  judicial  review  of  the  action  of  the  Commission  is  contemplated 
by  the  act  of  December  23,  1911,  the  court  to  try  questions  of  law  and 
fact  the  same  as  they  are  tried  by  the  Commission,  giving  such  weight, 
however,  to  the  decision  of  the  Commission  on  all  matters  of  fact  that 
it  shall  stand,  unless  shown  to  be  wrong  by  "clear  and  satisfactory" 
evidence.  See  Minneapolis,  St.  P.  &  Ste.  M.  E.  Co.  v.  Eailroad  Com- 
mission (cone.  op.  Marshall  &  Bashford,  JJ.),  136  Wis.  146,  116  N. 
W.  915. 

Eates  fixed  held  to  be  unreasonable,  court  will  not  fix  rates  deemed 
by  it  to  be  reasonable;  this  duty  devolves  upon  the  board  or  body 
by  law  charged  with  the  duty  of  fixing  proper  rates.  Osbourne  v.  San 
Diego  L.  &  T.  Co.,  178  U.  S.  22,  20  Sup.  Ct.  860,  44  L.  ed.  961. 

In  considering  the  reasonableness  of  the  rate  fixed  by  the  Eailroad 
Commission,  courts  are  justified  in  taking  into  consideration  what  is 
known  as  "commercially  necessary" ;  that  is  to  say,  the  application  of  the 
principle  when  fixing  rates  which  are  forced  upon  common  carriers  by 
various  conditions  and  circumstances  and  are  not  common  practice 
among  railroad  companies — a  business  policy  which  actuates  and  influ- 
ences the  carriers  to  disregard  as  to  a  strict  comparison  and  strict 
equality  as  to  bulk,  or  weight  or  value  as  well  as  to  the  distance  of 
the  carriage.  State  ex  rel.  Eailroad  &  Warehouse  Commission  v.  Min- 
neapolis &  St.  L.  E.  Co.,  80  Minn.  191,  83  N.  W.  60. 

Estimating  the  cost  of  operating  a  railroad  per  ton  of  freight  per 
mile  of  carriage  for  purpose  of  determining  reasonableness  of  a  tariff 
of  rates  fixed  by  the  state  Eailroad  Commission,  it  is  error  to  take  into 


§  355  PROCEDURE  BEFORE   COMMISSION   AND   COURTS.  239 

not  be  subject  to  review;  such  questions  of  fact  shall 
include  ultimate  facts  and  the  findings  and  conclusions 
of  the  Commission  on  reasonableness  and  discrii; 
tion.72 

consideration  the  amount  of  earnings  which  has  been  appropriated  and 
paid  out  as  dividends  on  stock  shares  of  such  railroad  company.  State 
ex  rel.  Railroad  &  Warehouse  Commission  v.  Minneapolis  &  St.  L.  R. 
Co.,  80  Minn.  191,  83  N.  W.  60. 

On  appeal  to  the  supreme  court,  the  scope  of  review  is  the  same  as 
in  case  of  an  appeal  from  a  judgment  in  an  action  tried  by  the  court. 
Minneapolis,  St.  P.  &  Ste.  M.  R.  Co.  v.  Railroad  Commission  (cone, 
op.  Marshall  &  Bashford,  JJ.),  136  Wis.  146,  116  N.  W.  915. 

On  review  of  order  of  Railroad  Commission  inquiry  is  not  whether  rate, 
regulation,  or  feervice  fixed  by  such  Commission  is  just  and  reasonable, 
but  whether  the  "order"  of  such  Commission  is  unreasonable  or  unlaw- 
ful. Minneapolis,  St.  P.  &  Ste.  M.  R.  Co.  v.  Railroad  Commission,  136 
Wis.  146,  165,  116  N.  W.  915. 

Provisions  of  Wisconsin  Railroad  Commission  Act  which  are  similar 
to  those  of  section  32  of  the  Oregon  Railroad  Commission  Act  con- 
strued as  to  the  scope  of  the  judicial  review  in  Minneapolis,  St.  Paul 
&  Ste.  Marie  R.  Co.  v.  Railroad  Commission,  136  Wis.  146,  116  X.  W.  905. 

72  Section  67,  p.  56. 

Considering  degree  of  proof  required  and  viewpoint  of  investigation 
by  the  supreme  court,  and  that  the  court  is  dealing  with  a  question  of 
fact,  or  a  mixed  question  of  fact  and  law,  great  weight  is  necessary 
to  be  given  to  the  orders  of  the  Commission.  Minneapolis,  St.  P.  & 
Ste.  M.  R.  Co.  v.  Railroad  Commission,  136  Wis.  146,  167,  116  X.  W. 
915.  See  Morgan's  La.  &  T.  R.  &  S.  S.  Co.  v.  Railroad  Commission,  109 
La.  247,  33  So.  214. 

Degree  of  proof  required  in  an  action  to  set  aside  an  order  of  the 
Railroad  Commission,  the  viewpoint  of  investigation  by  the  court,  and 
the  circumstances  that  the  court  is  dealing  with  a  question  of  fact,  or 
with  a  mixed  question  of  fact  and  law,  required  that  great  weight 
necessarily  be  given  to  the  order  of  the  Commission,  and  that  a  very 
strong  case  must  be  made  by  the  complainant  in  order  to  establish  its 
unreasonableness.  See  Minneapolis,  St.  P.  &  Ste.  M.  R.  Co.  v.  Railroad 
Commission,   136  Wis.   146,  116  N.  W.  915. 

Distinction  between  the  terms  "unreasonable"  and  "unlawful"  was 
raised  but  not  determined  in  the  case  of  Minneapolis,  St.  P.  &  Ste. 
Marie  R.  Co.  v.  Railroad  Commission,  136  Wis.  146,  116  N.  W.  915. 

Provision  making  prima  facie  presumption  in  favor  of  findings  of 
fact  of  Railroad  Commission,  such  findings  will  not  be  disturbed  by 
the  court  when  supported  by  evidence.  St.  Louis  &  S.  F.  R.  Co.  v. 
Williams,  25  Okl.  662,  107  Pac.  428. 

The  provision  of  section  11  of  the  Kansas  Act  creating  the  Board  of 
Railroad  Commissioners   (Laws  1905,  c.  340),  making  certain  orders  of 


240  CALIFORNIA   PUBLIC   UTILITIES   ACT.  §  356 

§  356.     Right  to  Appear  at. — The  Commission 

and  each  party  to  the  action  or  proceeding  before  the 

such  board  conclusive  after  the  lapse  of  thirty  days  after  promulgation, 
is  a  rule  of  evidence  and  not  a  limitation  upon  the  rights  of  a  com- 
plaining party  to  offer  evidence  in  defense'  of  an  action  in  mandamus, 
to  compel  obedience  to  such  order.  State  ex  rel.  Taylor  v.  Missouri- 
Pac.  R.   Co.,  76  Kan.  467,  92  Pac.   606. 

The  provision  of  the  act  of  December  23,  1911,  placing  the  burden 
of  proof  upon  the  plaintiff  to  show  by  clear  and  satisfactory  evidence 
that  the  order  of  the  Commission  is  unlawful  or  unreasonable,  does  not, 
by  the  words  "clear  and  satisfactory,"  intend  to  describe  a  degree  of 
proof;  clearly  amount  is  mere  preponderance  of  evidence,  and  such  as 
required  to  establish  fraud  or  prove  mistake  in  a  written  instrument. 
Minneapolis,  St.  P.  &  Ste.  Marie  R.  Co.  v.  Railroad  Commission,  136  Wis. 
146,   116   N.   W.   915. 

Reasonableness  and  justice  of  rates,  etc.,  fixed  by  Railroad  Commis- 
sion is  to  be  determined  by  the  same  rules  as  if  it  were  an  issue  in 
other  classes  of  suit,  except  as  to  the  conclusion  of  the  character  of 
the  evidence  required.  Railroad  Commission  v.  Houston  &  T.  C.  R. 
Co.,  90  Tex.  340,  353,  38  S.  W.  750. 

Test  of  unreasonableness  of  regulation  adopted  by  the  Railroad  Com- 
mission is  not  a  consideration  of  the  question  whether  such  regulation 
amounts  to  a  taking  of  property  without  proper  compensation.  Such 
a  test  is  applicable  only  in  the  determining  of  the  constitutionality  of  the 
law.  Railroad  Commission  v.  Houston  &  T.  C.  R,  Co.,  90  Tex.  340,  353, 
38  S.  W.  750. 

In  determining  the  reasonableness  of  the  rates  fixed  by  the  Rail- 
road Commission,  a  court  cannot  assume  that  the  cost  of  reproduction 
of  a  line  of  railroad,  or  that  the  present  line  of  railroad,  as  compared 
with  the  original  cost  of  construction,  is  the  amount  of  stock  and  bonds 
outstanding,  or  that  it  is  what  the  road  cost  up  to  the  time  of  trial. 
State  ex  rel.  Railroad  &  Warehouse  Commission  v.  M.  &  St.  L.  R.  Co., 
80  Minn.  191,  83  N.  W.  60. 

Prima  facie  evidence  of  reasonableness  of  rates  fixed  by  the  Railroad 
Commission  and  the  evidence  necessary  to  overcome  the  same.  See 
Steenerson  v.  G.  N.  R.  Co.,  69  Minn.  353,  72  N.  W.  713;  State  ex  rel. 
Railroad  &  Warehouse  Commission  v.  M.  &  St.  L.  R.  Co.,  80  Minn.  191, 
83  N.  W.  60;  Smyth  v.  Ames,  169  U.  S.  466,  18  Sup.  Ct.  418,  42  L.  ed. 
819. 

Railroad  Commission,  under  the  Illinois  Act,  has  authority  to  make 
schedule  for  changes,  which  are  prima  facie  evidence  of  the  reasonable- 
ness of  the  rates  to  be  charged  by  carriers  by  rail,  and  the  courts,  in 
a  suit  against  the  carrier,  cannot  inquire  and  determine  what  is  a  rea- 
sonable rate.  Chicago,  B.  &  Q.  R.  Co.  v.  Jones,  149  HI.  361,  37  N. 
E.  247. 


§§  357,  358      PROCEDURE  BEFORE  COMMISSION  AND  COURTS.      241 

Commission  shall  have  the  right  to  appear  in  the  re- 
view proceeding.73 

§  357.    Judgment  of    Supreme  Court. — Upon 

the  hearing  the  supreme  court  shall  enter  judgment 
either  affirming  or  setting  aside  the  order  or  decision 
of  the  Commission.74 

§  358.    Provisions  of  Code  of  Civil  Procedure 

as  to  Writs  of  Review  Govern. — The  provisions  of 
the  Code  of  Civil  Procedure  of  this  state  relating  to 
writs  of  review  shall,  so  far  as  applicable  and  not  in 
conflict  with  the  provisions  of  this  act,  apply  to  pro- 
ceedings instituted  in  the  supreme  court  under  the  pro- 
visions of  this  section.75 

T3  Section  67,  p.  56. 

7*  lb. 

Order  of  Commission  need  not  be  confiscatory  in  its  character  and 
effect  in  order  to  render  it  unlawful  and  unreasonable  within  the  mean- 
ing of  the  statute.  Minneapolis,  St.  P.  &  Ste.  Marie  R.  Co.  v.  Railroad 
Commission,  136  Wis.  146,  116  N.  W.  915. 

Reviewing  order  of  Commission  requiring  certain  service  from  a  rail- 
road company  or  other  carrier,  the  court  must  ascertain  that  the  Com- 
mission by  the  order  complained  of  fixed  the  minimum  service  which, 
in  its  opinion,  would  be  reasonable;  and  if  the  court  finds,  upon  full 
consideration  of  the  evidence,  giving  due  weight  to  the  decision  of  the 
Commission,  that  a  less  service  would  be  reasonable,  the  court  should 
hold  the  order  to  be  unlawful,  because  an  erroneous  decision  of  a  con- 
crete question  of  fact.  Minneapolis,  St.  P.  &  Ste.  M.  R.  Co.  v.  Rail- 
road Commission   (dis.  op.  Dodge,  J.),  136  Wis.  146,  116  X.  W.  915. 

See  State  ex  rel.  Tompkins  v.  Chicago,  M.  &  St.  P.  R.  Co.,  11  S.  D. 
282,  77  N.  W.  104,  where  it  was  held  that  judgment  could  not  be  ren- 
dered and  entered  on  the  pleading  alone  where  the  defendant  had  ap- 
peared and  made  answer  denying  allegations  of  petition,  but  that  it 
was  incumbent  on  plaintiff  to  submit  testimony  sufficient  to  establish 
the  allegations  of  the  petition. 

75  Section  67,  p.  56. 

The  difference  in  procedure  under  the  Interstate  Commerce  Act  and 
under  the  state  Railroad  Commission  or  Public  Utilities  Commission 
Acts,  consists  chiefly  in  this:  that  under  the  Commerce  Act  the  carriers 
must  sue  to  overcome  a  prima  facie  case,  while  under  the  state  acts 
the  Commission  itself  must  sue  to  impose  its  order,  and  the  carrier 
16 


242  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  359 

§  359.    Jurisdiction  on. — No  court  of  this  state 

(except  the  supreme  court  to  the  extent  herein  speci- 
fied) shall  have  jurisdiction  to  review,  reverse,  correct 
or  annul  any  order  or  decision  of  the  Commission  or 
to  suspend  or  delay  the  execution  or  operation  thereof, 
or  to  enjoin,  restrain  or  interfere  with  the  Commission 
in  the  performance  of  its  official  duties.76 

must  overcome  the  prima  facie  case  by  its  defense.  Oregon  R.  &  Nav. 
Co.  v.  Campbell,  173  Fed.  957. 

A  further  distinction  is  to  be  noted  in  this:  the  Commerce  Act  en- 
forces its  behests  and  the  findings  and  orders  of  the  Commission  by  the 
imposition  of  fines  and  penalties,  while  under  the  state  acts  the  Com- 
mission must  resort  more  generally  to  the  circuit  court  by  remedial  action 
or  suit  for  the  enforcement  of  the  law's  mandate  and  its  own  recom- 
mendations and  orders.  Oregon  R.  &  Nav.  Co.  v.  Campbell,  173  Fed. 
957. 

76  Section  67,  p.  56. 

An  appeal  from  Commission  confers  appellate  jurisdiction  upon  the 
supreme  court  in  all  actions  before  the  Corporation  Commission  wherein 
it  is  sought  to  regulate  the  management  and  operation  of  transportation 
companies.  But  the  supreme  court  has  no  jurisdiction  in  case  against 
Corporation  Commission  "on  order  for  opening  streets";  the  court  say- 
ing that  it  does  not  follow  that  an  appeal  lies  in  all  actions  over  which 
the  Commission  may  have  jurisdiction.  Atchison,  T.  &  S.  F.  R.  Co.  v. 
State,  27  Okl.  820,  115  Pac.  1101. 

Court  cannot  be  invested  with  discretion  to  determine  whether  the 
precedent  law  declared  by  the  legislature  shall  or  shall  not  go  into 
effect  in  particular  cases.  Minneapolis,  St.  P.  &  Ste.  M.  R.  Co.  v.  Rail- 
road Commission,  136  Wis.  146,  163,  116  N.  W.  915.  See  In  re  North 
Milwaukee,  93  Wis.  616,  67  N.  W.  133,  33  L.  R.  A.  638;  Dowling  v. 
Lancashire  Ins.  Co.,  92  Wis.  63,  65  N.  W.  738,  31  L.  R.  A.  112. 

The  court  acts  judicially  in  determining  the  matter  of  rates  finally, 
not  in  a  legislative  capacity,  so  that  in  the  court's  action  there  is  not 
a  competition  of  legislative  and  judicial  functions  in  one  person  or  body. 
Oregon  R.  &  Nav.  Co.  v.  Campbell,  173  Fed.  957,  976. 

The  intendment  of  the  act  is  that  the  Commission  shall  exercise  the 
administrative  power  necessary  to  make  the  legislative  act  of  fixing 
rates  effective  and  with  respect  to  the  administration  of  the  law,  while 
the  judiciary  exercises  the  judicial  power  by  passing  upon  the  reason- 
ableness of  the  rates  fixed  by  the  Commission,  when  that  reasonable- 
ness is  questioned.  Oregon  R.  &  Nav.  Co.  v.  Campbell,  173  Fed.  957, 
976,  distinguishing  Chicago,  M.  &  9t.  P.  R.  Co.  v.  Minnesota,  134  U. 
S.  418,  10  Sup.  Ct.  462,  33  L.  ed.  970. 

Whether  it  is  within  the  power  of  the  legislature  to  confer  upon 
courts  authority  to  review  the  reason  of  rules  or  orders  of  the  Railroad 


§§  3GO-362      PROCEDURE  BEFORE  COMMISSION  AND  COURTS.      24:3 

§  360.  Mandamus  to  Commission  on. — Pro- 
vided, that  the  writ  of  mandamus  shall  lie  from  the 
supreme  court  to  the  Commission  in  all  proper  cases.77 

§  361.  Suspension  of  Commission's  Order — None 
Pending  Review. — The  pendency  of  a  writ  of  review 
shall  not  of  itself  stay  or  suspend  the  operation  of 
the  order  or  decision  of  the  Commission,  but  during 
the  pendency  of  such  writ,  the  supreme  court  in  its 
discretion  may  stay  or  suspend,  in  whole  or  in  part, 
the  operation  of  the  Commission's  order  or  decision.78 

§  362.     Stay  by  Supreme    Court,  Notice.— Xo 

order  so  staying  or  suspending  an  order  or  decision  of 
the  Commission  shall  be  made  by  the  supreme  court 
otherwise  than  upon  three  days'  notice  and  after  hear- 
ing, and  if  the  order  or  decision  of  the  Commission  is 
suspended,  the  order  suspending  the  same  shall  con- 

Commission  depends  upon  the  fundamental  nature  of  these  rules  or 
orders.  If  such  rules  and  orders  are  purely  legislative  and  violate  no 
constitutional  law  or  supreme  federal  statute,  it  would  be  incorrect  to 
say  that  their  reason  could  be  the  subject  of  judicial  review,  because 
that  would  give  the  judicial  branch  of  government  a  supervisory  con- 
trol over  legislation,  largely  discretionary  and  limited  only  by  the  judi- 
cial opinion  of  what  is  reasonable.  Minneapolis,  St.  P.  &  Ste.  M.  R. 
Co.  v.  Railroad  Commission,  136  Wis.  146,  116  N.  W.  915. 

"  Section  67,  p.  56. 

Action  in  mandamus  lies  to  compel  performance  of  some  official 
or  corporate  act  by  a  public  officer  or  corporation  when  no  other  rem- 
edy specifically  exists.  Smalley  v.  Yates,  36  Kan.  519,  13  Pac.  845. 
See  State  ex  rel.  Taylor  v.  Missouri  Pac.  R.  Co.,  76  Kan.  467,  585,  92 
Pac.  606. 

Injunction  restraining  Railroad  Commission  from  publishing  and  put- 
ting in  force  a  schedule  is  no  defense  to  an  act  for  the  violation  of  the 
order  of  the  Commission  where  the  law  has  already  made  the  sched- 
ule effective  without  publishing  at  the  time  the  injunction  is  granted. 
Hooper  v.  Chicago,  M.  &  St.  P.  R.  Co.,  91  Iowa,  639,  60  N.  W.  487. 

In  proceedings  by  mandamus  in  the  supreme  court,  under  the  Kansas 
Act,  the  only  question  to  be  determined  is  whether  the  order  of  the 
Commission  fixing  rates  is  reasonable.  State  ex  rel.  Taylor  v.  Missouri- 
Pac.  R.  Co.,  76  Kan.  467,  92  Pac.  606. 

«  Section  68   (a),  p.  56. 


244  CALIFORNIA   PUBLIC    UTILITIES   ACT.         §§  363,  364 

tain  a  specific  finding  based  upon  evidence  submitted 
to  the  court  and  identified  by  reference  thereto,  that 
great  or  irreparable  damage  would  otherwise  result  to 
the  petitioner  and  specifying  the  nature  of  the  dam- 
age.79 

§  363.    Stay  Effective  When  Bond  Filed,  Only. 

In  case  the  order  or  decision  of  the  Commission  is 
stayed  or  suspended,  the  order  of  the  court  shall  not 
become  effective  until  a  suspending  bond  shall  first 
have  been  executed  and  filed  with,  and  approved  by 
the  Commission  (or  approved,  on  review,  by  the 
supreme  court),  payable  to  the  people  of  the  state  of 
California,  and  sufficient  in  amount  and  security  to 
insure  the  prompt  payment,  by  the  party  petitioning 
for  the  review,  of  all  damages  caused  by  the  delay  in 
the  enforcement  of  the  order  or  decision  of  the  Com- 
mission, and  of  all  moneys  which  any  person  or  cor- 
poration may  be  compelled  to  pay,  pending  the  review 
proceedings,  for  transportation,  transmission,  product, 
commodity  or  service  in  excess  of  the  charges  fixed  by 
the  order  or  decision  of  the  Commission,  in  case  said 
order  or  decision  is  sustained.80 

§  364.    Stay  Granted — Money  to  be  Paid  into 

Court  and  Impounded — Deposit  at  Interest. — The  su- 
preme court,  in  case  it  stays  or  suspends  the  order  or 
decision  of  the  Commission  in  any  matter  affecting 
rates,  fares,  tolls,  rentals,  charges  or  classifications, 
shall  also  by  order  direct  the  public  utility  affected 

79  Section  68  (b),  p.  56. 

Injunction  not  to  issue  against  Commission's  order  except  on  applica- 
tion, notice  and  hearing.  Both  are  contemplated  under  the  provision  of 
section  33  (Oregon  Laws  1907,  c.  53,  p.  87,  as  amended  by  Laws  1909, 
c.  103,  p.  163),  upon  the  suspension  of  the  order  of  the  Commission 
pending  refusal  of  such  order,  does  not  cover  other  penalties  provided 
for  in  this  statute.  Oregon  R.  &  Nav.  Co.  v.  Railroad  Commission,  173 
Fed.  989. 

so  Section  68  (c),  p.  56. 


§§  365,  366      PROCEDURE  BEFORE  COMMISSION  AND  COURTS.      245 

to  pay  into  court,  from  time  to  time,  there  to  be  im- 
pounded until  the  final  decision  of  the  case,  or  into 
some  bank  or  trust  company  paying  interest  on  de- 
posits, under  such  conditions  as  the  court  may  pre- 
scribe, all  sums  of  money  which  it  may  collect  from 
any  corporation  or  person  in  excess  of  the  sum  such 
corporation  or  person  would  have  been  compelled  to 
pay  if  the  order  or  decision  of  the  Commission  had  not 
been  stayed  or  suspended.81 

§  365.  Stay  Granted — Act  to  be  Kept  Under  Oath, 
Condition  of — Penalty  for  Failure. — In  case  the  su- 
preme court  stays  or  suspends  any  order  or  decision 
lowering  any  rate,  fare,  toll,  rental,  charge  or  classifica- 
tion, the  Commission,  upon  the  execution  and  approval 
of  said  suspending  bond,  shall  forthwith  require  the 
public  utility  affected,  under  penalty  of  the  immediate 
enforcement  of  the  order  or  decision  of  the  Commis- 
sion (pending  the  review  and  notwithstanding  the  sus- 
pending order),  to  keep  such  accounts,  verified  by  oath, 
as  may,  in  the  judgment  of  the  Commission,  suffice  to 
show  the  amounts  being  charged  or  received  by  such 
public  utility,  pending  the  review,  in  excess  of  the 
charges  allowed  by  the  order  or  decision  of  the  Com- 
mission, together  with  the  names  and  addresses  of  the 
corporations  or  persons  to  whom  overcharges  will  be 
refundable  in  case  the  charges  made  by  the  public 
utility,  pending  the  review,  be  not  sustained  by  the 
supreme  court.82 

§  366.  Additional  Securities  may  be  Re- 
quired.— The  court  may,  from  time  to  time,  require 
said  party  petitioning  for  a  review  to  give  additional 
security  on,  or  to  increase  the  said  suspending  bond, 
whenever  in  the  opinion  of  the  court  the  same  may  be 

si  lb.,  p.  57. 

82  Section  68  (d),  p.  57. 


246  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §§  367-369 

necessary  to  insure  the  prompt  payment  of  said  dam- 
ages and  said  overcharges.83 

§  367.  Disposition  of  Moneys  on  Final  De- 
cision.— Upon  the  final  decision  by  the  supreme  court, 
all  moneys  which  the  public  utility  may  have  collected, 
pending  the  appeal  in  excess  of  those  authorized  by 
such  final  decision,  together  with  interest,  in  case  the 
court  ordered  the  deposit  of  such  moneys  in  a  bank 
or  trust  company,  shall  be  promptly  paid  to  the  cor- 
porations or  persons  entitled  thereto,  in  such  manner 
and  through  such  methods  of  distribution  as  may  be 
prescribed  by  the  Commission.84 

§  368.    Moneys  not  Claimed — Advertisement. 

If  any  such  moneys  shall  not  have  been  claimed  by 
the  corporations  or  persons  entitled  thereto  within  one 
year  from  the  final  decision  of  the  supreme  court,  the 
Commission  shall  cause  notice  to  such  corporations  or 
persons  to  be  given  by  publication,  once  a  week  for 
two  successive  weeks,  in  a  newspaper  of  general  cir- 
culation, printed  and  published  in  the  city  and  county 
of  San  Francisco,  and  such  other  newspaper  or  news- 
papers as  may  be  designated  by  the  Commission,  said 
notice  to  state  the  names  of  the  corporations  or  per- 
sons entitled  to  such  moneys  and  the  amount  due  each 
corporation  or  person.85 

§  369.    Final    Disposition    of    Moneys    not 

Claimed. — All  moneys  not  claimed  within  three  months 
after  the  publication  of  said  notice  shall  be  paid  by  the 
public  utility,  under  the  direction  of  the  Commission, 
into  the  state  treasury  for  the  benefit  of  the  general 
fund.88 

83  Section  68  (d),  p.  57. 

s*  lb. 

85  Tb. 

86  lb. 


§§  370-372      PROCEDURE  BEFORE  COMMISSION  AND  COURTS.       247 

§  370.  Court  Proceedings  —  Preferences.— All  ac- 
tions and  proceedings  under  this  act,  and  all  actions 
or  proceedings  to  which  the  Commission  or  the  people 
of  the  state  of  California  may  be  parties,  and  in  which 
any  question  arises  under  this  act,  or  under  or  con- 
cerning any  order  or  decision  of  the  Commission,  shall 
be  preferred  over  all  other  civil  causes  except  election 
causes  and  shall  be  heard  and  determined  in  prefer- 
ence to  all  other  civil  business  except  election  causes, 
irrespective  of  position  on  the  calendar.  The  same 
preference  shall  be  granted  upon  application  of  the 
attorney  of  the  Commission  in  any  action  or  proceed- 
ing in  which  he  may  be  allowed  to  intervene." 

§  371.  Physical  Valuation— Hearings  for.— For  the 
purpose  of  ascertaining  the  matters  and  things  speci- 
fied in  section  47  of  this  act,  concerning  the  value  of 
the  property  of  public  utilities,  the  Commission  may 
cause  a  hearing  or  hearings  to  be  held  at  such  time 
or  times  and  place  or  places  as  the  Commission  may 
designate.88 

§  372.  Thirty  Days'  Notice  in  Writing— Con- 
ditions of. — Before  any  hearing  is  had,  the  Commission 
shall  give  the  public  utility  affected  thereby  at  least 
thirty  days'  written  notice,  specifying  the  time  and 
place  of  such  hearing,  and  such  notice  shall  be  sufficient 
to  authorize  the  Commission  to  inquire  into  the  matters 
designated  in  this  section  and  in  said  section  47  of  this 
act,  but  this  provision  shall  not  prevent  the  Commis- 
sion from  making  any  preliminary  examination  or 
investigation  into  the  matters  herein  referred  to,  or 
from  inquiring  into  such  matters  in  any  other  inves- 
tigation or  hearing.89 

87  Section  69,  p.  58. 

88  Section  70,  p.  58. 
8»  lb. 


248  CALIFORNIA   PUBLIC   UTILITIES   ACT.         §§  373-377 

§  373.    Who  Entitled  to  Appear  at  and  Put 

in  Evidence. — All  public  utilities  affected  shall  be  en- 
titled to  be  heard  and  to  introduce  evidence  at  such 
hearing  or  hearings.80 

§  374.    Scope    of    Inquiry  —  Evidence. — The 

Commission  is  empowered  to  resort  to  any  other  source 
of  information  available.  The  evidence  introduced  at 
such  hearing  shall  be  reduced  to  writing  and  certified 
under  the  seal  of  the  Commission.91 

§  375.    Findings  of    Fact  in  Writing   to  be 

Filed. — The  Commission  shall  make  and  file  its  find- 
ings of  fact  in  writing  upon  all  matters  concerning 
which  evidence  shall  have  been  introduced  before  it 
which  in  its  judgment  have  bearing  on  the  value  of 
the  property  of  the  public  utility  affected.92 

§  376.    Findings  of  Fact  Subject  to  Review. — 

Such  findings  shall  be  subject  to  review  by  the  supreme 
court  of  this  state  in  the  same  manner  and  within  the 
same  time  as  other  orders  and  decisions  of  the  Com- 
mission.93 

§  377.    Findings  of  Commission  Admissible  as 

Evidence. — The  findings  of  the  Commission  so  made 
and  filed,  when  properly  certified  under  the  seal  of  the 
Commission,  shall  be  admissible  in  evidence  in  any 
action,  proceeding  or  hearing  before  the  Commission 
or  any  court,  in  which  the  Commission,  the  state  or  any 
officer,  department  or  institution  thereof,  or  any 
county,  city  and  county,  municipality  or  other  body 
politic  and  the  public  utility  affected  may  be  inter- 
ested whether  arising  under  the  provisions  of  this  act 

»o  lb. 
si  lb. 

92    lb. 
83    lb. 


§§  378-380      PROCEDURE  BEFORE  COMMISSION  AND  COURTS.      249 

or  otherwise,  and  such  findings,  when  so  introduced, 
shall  be  conclusive  evidence  of  the  facts  therein  stated 

as  of  the  date  therein  stated  under  conditions  then 
existing,  and  such  facts  can  only  be  controverted  by 
showing  a  subsequent  change  in  conditions  bearing 
upon  the  facts  therein  determined.94 

§  378.    Further  Hearings  from  Time  to  Time. 

The  Commission  may  from  time  to  time  cause  further 
hearings  and  investigations  to  be  had  for  the  purpose 
of  making  revaluations  or  ascertaining  the  value  of 
any  betterments,  improvements,  additions  or  exten- 
sions made  by  any  public  utility  subsequent  to  any 
prior  hearing  or  investigation,  and  may  examine  into 
all  matters  which  may  change,  modify  or  affect  any 
finding  of  fact  previously  made,  and  may  at  such  time 
make  findings  of  fact  supplementary  to  those  thereto- 
fore made.95 

§  379.    Further  Hearing  shall  be  on  Written 

Notice. — Such  hearings  shall  be  had  upon  the  same 
notice  and  be  conducted  in  the  same  manner,  and  the 
findings  so  made  shall  have  the  same  force  and  effect 
as  is  provided  herein  for  such  original  notice,  hearing 
and  findings.98 

§  380.    Findings  at  Supplemental  Hearings — 

Considered  With  Original  Finding. — Provided,  that 
such  findings  made  at  such  supplemental  hearings  or 
investigations  shall  be  considered  in  connection  with 
and  as  a  part  of  the  original  findings  except  in  so  far 
as  such  supplemental  findings  shall  change  or  modify 
the  findings  made  at  the  original  hearing  or  investi- 
gation.87 

9*  rt>. 

»s  lb. 

96    lb.,  p.  59. 

87    lb. 


250  CALIFORNIA   PUBLIC    UTILITIES   ACT.         §§  381-384 

§  381.    Excessive  or  Discriminatory  Charge — 

Reparation. — When  complaint  has  been  made  to  the 
Commission  concerning  any  rate,  fare,  toll,  rental  or 
charge  for  any  product  or  commodity  furnished  or 
service  performed  by  any  public  utility,  and  the  Com- 
mission has  found,  after  investigation,  that  the  public 
utility  has  charged  an  excessive  or  discriminatory 
amount  for  such  product,  commodity  or  service,  the 
Commission  may  order  that  the  public  utility  make  due 
reparation  to  the  complainant  therefor,  with  interest 
from  the  date  of  collection;  provided,  no  discrimina- 
tion will  result  from  such  reparation.98 

§  382.  Failure  to  Comply  With  Order  of  Rep- 
aration— Action. — If  the  public  utility  does  not  comply 
with  the  order  for  the  payment  of  reparation  within 
the  time  specified  in  such  order,  suit  may  be  instituted 
in  any  court  of  competent  jurisdiction  to  recover  the 
same." 

§  383.    Complaints   Concerning  and  Petition 

in  Action — Limitation. — All  complaints  concerning  ex- 
cessive or  discriminatory  charges  shall  be  filed  with 
the  Commission  within  two  years  from  the  time  the 
cause  of  action  accrues,  and  the  petition  for  the  en- 
forcement of  the  order  shall  be  filed  in  the  court  within 
one  year  from  the  date  of  the  order  of  the  Commis- 
sion.100 

§  384.    Remedy  Provided  is  Cumulative. — The 

remedy  in  this  section  provided  shall  be  cumulative 
and  in  addition  to  any  other  remedy  or  remedies  in 
this  act  provided  in  case  of  failure  of  a  public  utility 
to  obey  an  order  or  decision  of  the  Commission.101 

98  Section  71   (a),  p.  59. 
09  Section  71   (b),  p.  59. 
ioo  lb. 
ioi  lb. 


§§  385-387      PROCEDURE  BEFORE  COMMISSION  AND  COURTS.      251 

§  385.  Commission  Shall  Enforce  Laws — Action  in 
Name  of  People. — It  is  hereby  made  the  duty  of  the 
Commission  to  see  that  the  provisions  of  the  constitu- 
tion and  statutes  of  this  state  affecting  public  utilities, 
the  enforcement  of  which  is  not  specifically  vested  in 
some  other  officer  or  tribunal,  are  enforced  and  obeyed, 
and  that  violations  thereof  are  promptly  prosecuted 
and  penalties  due  the  state  therefor  recovered  and  col- 
lected, and  to  this  end  it  may  sue  in  the  name  of  the 
people  of  the  state  of  California.102 

§  386.  Attorney  General  and  District  Attor- 
ney to  Aid. — Upon  the  request  of  the  Commission,  it 
shall  be  the  duty  of  the  attorney  general  or  the  dis- 
trict attorney  of  the  proper  county  or  city  and  county 
to  aid  in  any  investigation,  hearing  or  trial  had  under 
the  provisions  of  this  act,  and  to  institute  and  prosecute 
actions  or  proceedings  for  the  enforcement  of  the  pro- 
visions of  the  constitution  and  statutes  of  this  state 
affecting  public  utilities  and  for  the  punishment  of  all 
violations  thereof.103 

§  387.  Public  Utilities  Liable  for  Damages— Who 
Entitled  to  Damages. — In  case  any  public  utility  shall 
do,  cause  to  be  done  or  permit  to  be  done  any  act, 
matter  or  thing  prohibited,  forbidden  or  declared  to 
be  unlawful,  or  shall  omit  to  do  any  act,  matter  or 
thing  required  to  be  done,  either  by  the  constitution, 
any  law  of  this  state  or  any  order  or  decision  of  the 
Commission,  such  public  utility  shall  be  liable  to  the 
persons  or  corporations  affected  thereby  for  all  loss, 
damages  or  injury  caused  thereby  or  resulting  there- 
from, and  if  the  court  shall  find  that  the  act  or  omis- 
sion was  willful,  the  court  may  in  addition  to   the 

102  Section  72,  p.  59. 

103  lb. 


252  CALIFORNIA   PUBLIC   UTILITIES   ACT.         §§  388-391 

actual  damages  award  damages  for  the  sake  of  exam- 
ple and  by  way  of  punishment.104 

§  388.    Jurisdiction    of    Action  — Who    may 

Bring. — An  action  to  recover  for  such  loss,  damage  or 
injury  may  be  brought  in  any  court  of  competent 
jurisdiction  by  any  corporation  or  person.105 

§  389.    Recovery  by  Individuals,  etc.,  not  to 

Affect  Right  of  State  to  Penalties.— No  recovery  as  in 
this  section  provided  shall  in  any  manner  affect  a 
recovery  by  the  state  of  the  penalties  in  this  act  pro- 
vided or  the  exercise  by  the  Commission  of  its  power 
to  punish  for  contempt.106 

§  390.  Effect  of  Act— Right  of  State  to  Penalties, 
etc.,  not  Affected.— This  act  shall  not  have  the  effect 
to  release  or  waive  any  right  of  action  by  the  state, 
the  Commission,  or  any  person  or  corporation  for  any 
right,  penalty  or  forfeiture  which  may  have  arisen  or 
accrued  or  may  hereafter  arise  or  accrue  under  any 
law  of  this  state.107 

§  391,    Penalties   Provided    Cumulative.— All 

penalties  accruing  under  this  act  shall  be  cumulative  of 
each  other,  and  a  suit  for  the  recovery  of  one  penalty 
shall  not  be  a  bar  to  or  affect  the  recovery  of  any  other 
penalty  or  forfeiture  or  be  a  bar  to  any  criminal  prose- 
cution against  any  public  utility,  or  any  officer,  di- 
rector, agent  or  employee  thereof,  or  any  other  cor- 
poration or  person,  or  be  a  bar  to  the  exercise  by  the 
Commission  of  its  power  to  punish  for  contempt.108 

104  Section  73    (a),  p.  59. 

105  lb.,  p.  60. 

we  Section  73  (b),  p.  60. 
io7  Section  74  (a),  p.  60. 
108  Section  74  (b),  p.  60. 


§  392  PROCEDURE  BEFORE   COMMISSION   AND   COURTS.  253 

§  392.  Summary  Proceedings — Injunction  to  Pre- 
vent Violation  of  Order,  etc. — Whenever  the  Commis- 
sion shall  be  of  the  opinion  that  any  public  utility  is 
failing  or  omitting  or  about  to  fail  or  omit,  to  do  any- 
thing required  of  it  by  law,  or  by  any  order,  decision, 
rule,  direction  or  requirement  of  the  Commission,  or  is 
doing  anything  or  about  to  do  anything,  or  permitting 
anything  or  about  to  permit  anything  to  be  done,  con- 
trary to  or  in  violation  of  law  or  of  any  order,  decision, 
rule,  direction  or  requirement  of  the  Commission,  it 
shall  direct  the  attorney  of  the  Commission  to  com- 
mence an  action  or  proceeding  in  the  superior  court  in 
and  for  the  county,  or  city  and  county,  in  which  the 
cause  or  some  part  thereof  arose,  or  in  which  the  cor- 
poration complained  of,  if  any,  has  its  principal  place 
of  business,  or  in  which  the  person,  if  any,  complained 
of,  resides,  in  the  name  of  the  people  of  the  state  of 
California,  for  the  purpose  of  having  such  violations 
or  threatened  violations  stopped  and  prevented,  either 
by  mandamus  or  injunction.109 

109  Section  75,  p.  60. 

As  to  jurisdiction  of  court  on  proceedings  in  mandamus  to  compel 
obedience  to  an  order  made  by  the  Board  of  Railroad  Commissioners, 
see  State  ex  rel.  Taylor  v.  Missouri  Pac.  R.  Co.,  76  Kan.  467,  92  Pac. 
606. 

In  proceedings  in  mandamus,  under  the  Kansas  Act,  to  compel  obedi- 
ence to  an  order  of  the  Commissioner,  the  order  properly  made  and 
promulgated  is  prima  facie  reasonable,  and  the  burden  of  proof  is  upon 
the  complaining  carrier  to  establish  its  unreasonableness.  State  ex  rel. 
Taylor  v.  Missouri  Pac.  R.  Co.,  76  Kan.  467,  92  Pac.  606. 

On  mandamus  proceedings  to  compel  obedience  to  an  order  of  the 
Railroad  Commission,  the  order  is  prima  facie  reasonable  and  the  bur- 
den of  proof  is  upon  the  person  seeking  to  set  it  aside  to  establish  its 
unreasonableness.  State  ex  rel.  Taylor  v.  Missouri  Pacific  R.  Co.,  76 
Kan.  467,  92  Pac.  606. 

Under  the  Kansas  Act  creating  the  Board  of  Railroad  Commissioners, 
the  supreme  court  has  jurisdiction  of  original  proceedings  in  mandamus 
to  compel  obedience  to  an  order  of  the  Commission.  The  power  thus 
conferred  upon  the  court  is  a  legislative  or  nonjudicial  power,   but  is 


254  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §§  393-395 

§  393,    Attorney  of  Commission  to  Proceed  in 

Superior  Court. — The  attorney  of  the  Commission  shall 
thereupon  begin  such  action  or  proceeding  by  petition 
to  such  superior  court,  alleging  the  violation  or  threat- 
ened violation  complained  of,  and  praying  for  appro- 
priate relief  by  way  of  mandamus  or  injunction.110 

§  394.  Court  to  Fix  Hearing— Copy  of  Peti- 
tion to  be  Served. — It  shall  thereupon  be  the  duty  of 
the  court  to  specify  a  time,  not  exceeding  twenty  days 
after  the  service  of  the  copy  of  the  petition,  within 
which  the  public  utility  complained  of  must  answer 
the  petition,  and  in  the  meantime  said  public  utility 
may  be  restrained.111 

§  395.    Procedure    in    Case    of   Default. — In 

case  of  default  in  answer,  or  after  answer,  the  court 
shall  immediately  inquire  into  the  facts  and  circum- 
stances of  the  case. 


112 


judicial,  pure  and  simple.  State  ex  rel.  Taylor  v.  Missouri  Pac.  E.  Co., 
76  Kan.  467,  92  Pac.  606. 

In  mandamus  to  enforce  tariff  of  Railroad  Commission,  under  the 
Minnesota  Act,  the  carrier  is  entitled  to  an  examination  of  matters  of 
fact  in  which  evidence  de  novo  may  be  taken.  State  ex  rel.  Railroad  & 
Warehouse  Commission  v.  Minneapolis  &  St.  L.  R.  Co.,  80  Minn.  191,  83 
N.  W.  60. 

Where  a  Eailroad  Commission  is  empowered  by  statute  to  fix  rates 
for  the  transportation  of  freight,  and  its  order  in  this  respect  is  disre- 
garded or  refused  by  any  common  carrier,  the  Commission  can  institute 
suit  in  the  name  of  the  state  for  the  purpose  of  enforcing  obedience  there- 
to. On  such  action  being  instituted,  the  court  will  require  the  carrier  to 
conform  to  the  order  of  the  Commission  fixing  the  rate.  State  v.  So.  Pac. 
Co.,  23  Or.  424,  31  Pac.  960. 

no  Section  75,  p.  60. 

in  lb. 

State  ex  rel.  Board  of  Railroad  Commrs.  v.  Duluth.  W.  &  P.  R.  Co., 
25  S.  D.  100,  125  N.  W.  564,  1910,  establishes  right  of  Railroad  Commis- 
sion to  bring  suit  by  petition  for  enforcement  of  its  order  to  a  common 
carrier. 

112  Section  75,  p.  60. 


§§  396-398      PROCEDURE  BEFORE  COMMISSION  AND  COURTS.      255 

§  396.    Joinder    of    Parties  —  Discretion    of 

Court. — Such  corporations  or  persons  as  the  court  may 
deem  necessary  or  proper  to  be  joined  as  parties,  in 
order  to  make  its  judgment,  order  or  writ  effective, 
may  be  joined  as  parties.113 

§  397.     Final    Judgment    on    Hearing.  —  The 

final  judgment  in  any  such  action  or  proceeding  shall 
either  dismiss  the  action  or  proceeding  or  direct  that 
the  writ  of  mandamus  or  injunction  issue  or  be  made 
permanent  as  prayed  for  in  the  petition,  or  in  such 
modified  or  other  form  as  will  afford  appropriate  re- 
lief.114 

§  398.    Appeal     to     Supreme     Court  —  How 

Taken. — An  appeal  may  be  taken  to  the  supreme  court 
from  such  final  judgment  in  the  same  manner  and  with 
the  same  effect,  subject  to  the  provisions  of  this  act, 
as  appeals  are  taken  from  judgments  of  the  superior 
court  in  other  actions  for  mandamus  or  injunction.115 

us  lb.,  p.  61. 

In  proceedings  in  suits  against  substituted  rates  under  Wisconsin  Rail- 
road Commission  Act  (sections  16  and  16e),  it  was  held  that  a  statutory 
suit  to  enforce  the  order  of  the  Commission,  similar  to  the  suit  provided 
for  in  the  Oregon  Railroad  Commission  Act,  section  32  (Oregon  Laws 
1907,  c.  53,  p.  87),  cannot  be  joined  with  another  suit  to  prevent  a 
third  party  from  violating  the  order  of  the  Commission,  notwithstanding 
the  provision  of  the  statute  as  to  the  joinder  of  actions.  City  of  Su- 
perior v.  Douglas  County  Telephone  Co.  (Wis.),  122  N.  W.  1023. 

ii4  Section  75,  p.  61. 

us  lb. 

On  appeal  to  the  supreme  court,  point  cannot  be  raised  when  no  atten- 
tion was  called  to  it  on  motion  for  new  trial,  although  there  was  a  gen- 
eral exception  to  instruction  allowing  interest  in  addition  to  treble  dam- 
ages. Hooper  v.  Chicago,  M.  &  St.  P.  R.  Co.,  91  Iowa,  639,  60  X.  YV. 
487. 

Unconstitutionality  of  statute  providing  for  Railroad  Commission,  in 
that  it  deprives  of  right  of  jury  trial,  cannot  be  raised  for  the  first 
time  on  appeal.  Hooper  v.  Chicago,  M.  &  St.  P.  R.  Co.,  91  Iowa,  639, 
60  N.  W.  487. 


256  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §  399 

§  399.  Penalties  for  Violation  by  Public  Utilities. 
Any  public  utility  which  violates  or  fails  to  comply 
with  any  provision  of  the  constitution  of  this  state 
or  of  this  act,  or  which  fails,  omits  or  neglects  to  obey, 
observe  or  comply  with  any  order,  decision,  decree, 
rule,  direction,  demand  or  requirement  or  any  part 
or  provision  thereof,  of  the  Commission,  in  a  case  in 
which  a  penalty  has  not  hereinbefore  been  provided 
for  such  public  utility,  is  subject  to  a  penalty  of  not 
less  than  five  hundred  dollars  nor  more  than  two  thou- 
sand dollars  for  each  and  every  offense.116 

lie  Section  76   (a),  p.  61. 

In  action  against  railroad  company  to  recover  treble  damages  allowed  by 
the  Illinois  statute  for  a  violation  of  its  provisions,  the  two  years'  limi- 
tation may  properly  be  pleaded,  as  in  that  state  action  for  a  statutory 
penalty  must  be  brought  within  two  years  next  after  the  cause  of  action 
accrues.     Chicago,  B.  &  Q.  R.  Co.  v.  Jones,  149  111.  361,  37  N.  E.  247. 

Treble  damages  being  provided  for  by  the  statute,  interest  cannot  be 
recovered,  Hooper  v.  Chicago,  M.  &  St.  P.  R.  Co.,  91  Iowa,  639,  60 
N.  W.  487. 

The  penalties  imposed  by  the  Oregon  Act  are  not  exorbitant  or  bur- 
densome for  willful  violation  for  the  provisions  of  the  act,  and  do  not 
interpose  any  impediment  to  prevent  carriers  concerned  from  having 
ample  recourse  to  any  court  having  jurisdiction  to  grant  relief.  Oregon 
R,  &  Nav.  Co.  v.  Campbell,  173  Fed.  957,  990. 

The  penalties  imposed  by  the  Oregon  Act  were  intended  to  be  of  a 
nature  to  practically  deprive  a  carrier  of  the  protection  of  the  law. 
The  act  provided  that  the  railroad  company  must  either  obey  the  order 
of  the  Commission  or  resort  to  a  court  for  an  injunction,  suspending 
or  staying  the  order;  but  that  if  resort  be  had  to  injunction,  the  com- 
pany shall  give  a  bond  conditioned  (1)  to  answer  for  all  damages  caused 
by  the  delay  in  the  enforcement  of  the  order  of  the  Commission  (2) 
and  all  penalties  that  would  attach  against  the  company;  and  (3)  for 
restitution  of  whatever  sum  for  transportation  service  any  person  or 
corporation  shall  be  compelled  to  pay  in  excess  of  the  sum  such  person 
or  corporation  would  have  been  compelled  to  pay  if  the  order  of  the 
Commission  had  not  been  suspended. 

The  first  condition,  relating  to  damages  that  would  ensue  by  reason  of 
delay  in  enforcing  the  order,  does  not  involve  penalties  of  a  character  to 
practically  deprive  carrier  of  the  equal  protection  of  the  law. 

Second  condition — in  relation  to  penalties  that  would  attach  against 
the  carrier — relates  to  the  provision  specified  in  section  51  of  the  act, 
to  the  effect  that  any  railroad  company  omitting  to  do  any  act  made 
or  thing  required  to  be  done  by  it  shall  be  rendered  liable  to  the  first 


§  400  PROCEDURE  BEFORE   COMMISSION   AND   COURTS.  257 

§  400.     Each    Day's  Continuance  a  Separate 

Offense. — Every  violation  of  the  provisions  of  this  act 
or  of  any  order,  decision,  decree,  rule,  direction,  de- 
mand or  requirement  of  the  Commission,  or  any  part 
or  portion  thereof  by  any  corporation  or  person  is  a 
separate  and  distinct  offense,  and  in  case  of  a  con- 
person,  firm  or  corporation  injured  thereby  in  treble  the  amount  of 
damage  sustained  in  consequence  of  such  violation,  together  with  reason- 
able attorney  fees.  Just  what  damages  would  ensue  to  any  person,  or 
corporation,  or  to  the  state  for  a  refusal  to  obey  an  order  fixing  the 
rates  are  not  patent;  but  this  item,  if  there  was  any  damage,  is  ex- 
pressly provided  for  by  the  three  conditions  above  named,  which 
exclude  it  from  the  obligation  of  the  second.  The  damage,  whatever  it 
may  be,  cannot  be  large  or  oppressive,  even  if  trebled. 

By  section  52,  four  things  are  enumerated  and  a  penalty  attached,  if 
any  officer,  agent  or  employee  shall  fail  or  refuse  to  do  and  perform 
the  same,  the  penalty  being  a  fine  of  from  one  hundred  dollars  to  one 
thousand  dollars,  and  the  recovery  of  from  five  hundred  dollars  to  one 
thousand  dollars  from  the  company  for  each  offense  when  the  officer, 
agent  or  employee  acts  in  obedience  to  its  direction.  These  enumerated 
things  are  as  follows:  (1)  Shall  refuse  to  fill  out  and  return  any  blanks 
required  by  the  act;  or  (2)  shall  refuse  to  answer  any  question  therein 
propounded;  (3)  shall  give  false  answers  to  any  such  questions;  or  (4) 
shall,  upon  proper  demand,  refuse  to  exhibit  any  books,  papers,  accounts, 
etc.,  in  his  possession  or  under  his  control.  But  none  of  these  things 
are  covered  by  the  second  condition  in  the  bond  required  to  be  given 
as  above  specified. 

Section  53  provides  that  if  the  railroad  shall  violate  any  provision 
of  the  act,  or  shall  fail  or  refuse  to  obey  any  lawful  requirement  of 
the  Commission  or  judgment  or  decree  of  the  court,  for  every  such  of- 
fense it  shall  forfeit  to  the  state  from  one  hundred  dollars  to  ten  thou- 
sand dollars. 

It  is  thought  that  the  penalties  above  specified  would  not  be  covered 
by  the  bond  in  the  case  of  injunction  staying  execution  of  the  order, 
because  the  injunction  is  provided  for  by  law,  ami  the  company  would 
be  availing  itself  of  a  lawful  right,  and,  while  so  doing,  it  would  seem 
that  it  could  not  at  the  same  time  be  held  for  a  violation  of  section  53, 
by  a  refusal  to  obey  an  order  of  the  Commission  or  a  judgment  or  < 
of  the  court.  Hence  the  bond  executed  can  be  no  impediment  of  sub- 
stantial moment,  standing  in  the  way  of  the  carrier  obtaining  a  speedy 
and  complete  adjudication  touching  the  reasonableness  of  the  rates  fixed 
by  the  Commission.  Oregon  R.  &  Nav.  Co.  v.  Campbell,  173  Fed.  957, 
989. 

The  penalties  provided  by  section  52  of  the  Oregon  Railroad  Commis- 
sion Act  (Laws  1907,  c.  53,  p.  97)  are  not  unconstitutionally  exorbitant 
17 


258  CALIFORNIA   PUBLIC    UTILITIES   ACT.         §§  401,  402 

tinuing  violation  each  day's  continuance  thereof  shall 
be  and  be  deemed  to  be  a  separate  and  distinct 
offense.117 

§  401.  Construction — Act  of  Omission  of  Offi- 
cer, etc. — In  construing  and  enforcing  the  provisions 
of  this  act  relating  to  penalties,  the  act,  omission  or 
failure  of  any  officer,  agent  or  employee  of  any  public 
utility,  acting  within  the  scope  of  his  official  duties 
or  employment,  shall  in  every  case  be  and  be  deemed 
to  be  the  act,  omission  or  failure  of  such  public 
utility.118 

§  402.  Penalties  for  Violation  by  Officers,  etc. — 
Misdemeanor. — Every  officer,  agent  or  employee  of  any 
public  utility,  who  violates  or  fails  to  comply  with,  or 
who  procures,   aids   or  abets   any  violation  by  any 

or  burdensome  for  willful  violation  of  the  provision  of  the  act;  and 
there  is  no  intendment  in  the  statute  to  prevent  the  railroad  companies 
concerned  from  ample  recourse  to  any  court  having  jurisdiction  to  grant 
relief,  nor  are  the  penalties  so  enormous  as  to  deter  the  company  from 
seeking  relief  from  any  court  otherwise  than  in  the  manner  provided 
in  section  33  of  that  act  as  amended  in  1909  (Laws  1909,  c.  103,  p. 
163)  ;  the  penalties  are  not  of  such  a  nature  as  to  practically  deprive  the 
railroad  aggrieved  of  the  equal  protection  of  the  laws.  Oregon  E.  & 
Nav.  Co.  v.  Campbell,  173  Fed.  990. 

Penalties  imposed  by  section  53  of  the  Oregon  Railroad  Commission 
Act  are  not  so  exorbitant  or  burdensome  as  to  prevent  railroad  compa- 
nies concerned  from  having  ample  recourse  to  any  court  possessing 
jurisdiction  for  relief  against  an  order  of  the  Commission.  Oregon  R. 
&  Nav.  Co.  v.  Campbell,  173  Fed.  990. 

An  order  of  the  Commission  requiring  the  revision  of  the  schedule 
of  local  rates  within  the  states  being  made,  the  railroad  is  chargeable 
with  but  one  penalty  under  section  53  of  the  Oregon  Railroad  Commis- 
sion Act  (Laws  1907,  c.  53,  p.  95)  for  a  violation  of  the  act  in  failing 
to  obey  the  order,  and  not  an  accumulation  of  penalties  for  a  repetition  of 
offenses  from  day  to  day,  for  each  particular  shipment  transported. 
The  section,  being  penal,  must  receive  a  strict  construction  and  no  accu- 
mulation of  offenses  can  be  carved  out  of  it,  unless  they  are  created  by 
the  strict  letter  of  the  statute.  Oregon  R.  &  Nav.  Co.  v.  Campbell,  173 
Fed.  989. 

lit  Section  76  (b),  p.  61. 

us  Section  76  (c),  p.  61. 


§§  403,  404      PROCEDURE  BEFORE  COMMISSION  AND  COURTS.      259 

public  utility  of  any  provision  of  the  constitution  of 
this  state  or  of  this  act,  or  who  fails  to  obey,  observe 
or  comply  with  any  order,  decision,  rule,  direction, 
demand  or  requirement  or  any  part  or  provision 
thereof,  of  the  Commission,  or  who  procures,  aids  or 
abets  any  public  utility  in  its  failure  to  obey,  observe 
and  comply  with  any  such  order,  decision,  rule,  direc- 
tion, demand  or  requirement,  or  any  part  or  provision 
thereof  in  a  case  in  which  a  penalty  has  not  herein- 
before been  provided  for  such  officer,  agent  or  em- 
ployee, is  guilty  of  a  misdemeanor  and  is  punishable  by 
a  fine  not  exceeding  one  thousand  dollars,  or  by  im- 
prisonment in  a  county  jail  not  exceeding  one  year,  or 
by  both  such  fine  and  imprisonment.119 

§  403.  Penalties  for  Violations  by  Corporations 
Other  Than  Public  Utilities. — Every  corporation,  other 
than  a  public  utility,  which  violates  any  provision  of 
this  act,  or  which  fails  to  obey,  observe  or  comply  with 
any  order,  decision,  rule,  direction,  demand  or  re- 
quirement, or  any  part  or  provision  thereof,  of  the 
Commission,  in  a  case  in  which  a  penalty  has  not  here- 
inbefore been  provided  for  such  corporation,  is  sub- 
ject to  a  penalty  of  not  less  than  five  hundred  dollars 
nor  more  than  two  thousand  dollars  for  each  and  every 
offense.120 

§  404.  Penalties  for  Violations  by  Persons  Other 
Than  Officers,  etc. — Every  person  who,  either  indi- 
vidually, or  acting  as  an  officer,  agent  or  employee  of 
a  corporation  other  than  a  public  utility,  violates  any 
provision  of  this  act,  or  fails  to  observe,  obey  or  com- 
ply with  any  order,  decision,  rule,  direction,  demand 
or  requirement,  or  any  part  or  portion  thereof,  of  the 
Commission,  or  who  procures,  aids  or  abets  any  such 

us  Section  77,  p.   61. 
120  Section  78,  p.  61. 


260  CALIFORNIA   PUBLIC    UTILITIES   ACT.  §§  405-408 

public  utility  in  its  violation  of  this  act,  or  in  its  failure 
to  obey,  observe  or  comply  with  any  such  order,  deci- 
sion, rule,  direction,  demand  or  requirement,  or  any 
part  or  portion  thereof,  in  a  case  in  which  a  penalty 
has  not  hereinbefore  been  provided  for  such  person,  is 
guilty  of  a  misdemeanor,  and  is  punishable  by  a  fine 
not  exceeding  one  thousand  dollars,  or  by  imprison- 
ment in  a  county  jail  not  exceeding  one  year,  or  by 
both  such  fine  and  imprisonment.125 

§  405.  Suit  to  Recover  Penalties — Jurisdiction. — 
Actions  to  recover  penalties  under  this  act  shall  be 
brought  in  the  name  of  the  people  of  the  state  of  Cali- 
fornia, in  the  superior  court  in  and  for  the  county,  or 
city  and  county,  in  which  the  cause  or  some  part 
thereof  arose,  or  in  which  the  corporation  complained 
of,  if  any,  has  its  principal  place  of  business,  or  in 
which  the  person,  if  any,  complained  of,  resides.122 

§  406.    Brought  and  Prosecuted  by  Whom. — 

Such  action  shall  be  commenced  and  prosecuted  to 
final  judgment  by  the  attorney  of  the  Commission.123 

§  407.    What  may  be  Recovered — Procedure 

and  Evidence. — In  any  such  action,  all  penalties  in- 
curred up  to  the  time  of  commencing  the  same  may  be 
sued  for  and  recovered.  In  all  such  actions,  the  pro- 
cedure and  rules  of  evidence  shall  be  the  same  as  in 
ordinary  civil  actions,  except  as  otherwise  herein  pro- 
vided.124 

§  408.  Disposition  of  Penalties  and  Costs  Re- 
covered.— All  fines  and  penalties  recovered  by  the  state 
in  any  such  action,  together  with  the  costs  thereof, 

i2i  Section  79,  p.  62. 

122  Section  80,  p.  62. 

123  lb. 

124  lb. 


§§  409-411      PROCEDURE  BEFORE  COMMISSION  AND  COURTS.      261 

shall  be  paid  into  the  state  treasury  to  the  credit  of 
the  general  fund.126 

§  409.  Compromise  or  Discontinuance  of  Ac- 
tion.— Any  such  action  may  be  compromised  or  discon- 
tinued on  application  of  the  Commission  upon  such 
terms  as  the  court  shall  approve  and  order.126 

§  410.  Contempt  Proceedings — Punishment. — Every 
public  utility,  corporation  or  person  which  shall  fail 
to  observe,  obey  or  comply  with  any  order,  decision, 
rule,  regulation,  direction,  demand  or  requirement,  or 
any  part  or  portion  thereof,  of  the  Commission  or  any 
commissioner  shall  be  in  contempt  of  the  Commission, 
and  shall  be  punishable  by  the  Commission  for  con- 
tempt in  the  same  manner  and  to  the  same  extent  as 
contempt  is  punished  by  courts  of  record.127 

§  411.    Remedy  Cumulative  and  not  a  Bar  to 

Other  Remedies  Prescribed. — The  remedy  prescribed 
in  this  section  shall  not  be  a  bar  to  or  affect  any  other 
remedy  prescribed  in  this  act,  but  shall  be  cumulative 
and  in  addition  to  such  other  remedy  or  remedies. ia* 

125  ib. 

126  Ib. 

127  Section  81,  p.  62. 

128  ft. 


262  CALIFORNIA   PUBLIC    UTILITIES  ACT.         §§412,413 


CHAPTER  X. 

CONSTRUCTION— SAVING  CLAUSE— APPROPRIATION—  RE- 
PEAL. 

§  412.     Effect  of  Act  on  Existing  Powers  of  Any  City,  etc. — Vote  to 

be  Taken. 
§  413.     Election    to    Continue    Power — Subsequent    Surrender    of 

Powers,  How. 
§  414.     Effect  of  Act  on  Pending  Actions  and  Proceedings. 

§  415.     Ratification   of   Act  and  Proceedings   of   Commission. 

§  416.     Cause  of  Action  shall  not  Abate — Action  may  be  Brought 

Under  This  Act. 

§  417.     Orders,  Decisions,  etc.,  of  Commission — Continued  in  Force. 

§  418.     Act  to  be  Construed  Continuance  of  Former  Acts  of  1911. 

§  419.     Constitutionality — Provision   as  to. 

§  420.     Declaration  of  Intent  of  Legislature. 

§  421.     Interstate  Commerce.. 

§  422.     Appropriation. 

§  423.     Repeals. 

§  424.     Time  of  Going  into  Effect. 

§  412.  Effect  of  Act  on  Existing  Powers  of  Any 
City,  etc. — Vote  to  be  Taken. — This  act  shall  not 
affect  such  powers  of  control  over  any  public  utility 
vested  in  auy  city  and  county  or  incorporated  city  or 
town  as,  at  an  election  to  be  held  pursuant  to  laws  to 
be  hereafter  passed  by  the  legislature,  a  majority  of 
the  qualified  electors  voting  thereon  of  such  city  and 
county,  or  incorporated  city  or  town,  shall  vote  to  re- 
tain, and  until  such  election  such  powers  shall  con- 
tinue unimpaired  in  such  city  and  county  or  incorpo- 
rated city  or  town;  but  if  the  vote  so  taken  shall  not 
favor  the  continuation  of  such  powers,  they  shall  there- 
after vest  in  the  Commission.1 

§  413,  Election  to  Continue  Power — Subse- 
quent  Surrender   of   Powers,   How. — Provided,   that 

i  Extraordinary  Session  1911,  c.  14,    §  82,  p.  62. 

Subsequent  legislation  is  to  be  considered  as  an  aid  to  the  interpreta- 
tion of  prior  legislation  upon  the  same  subject.  Tiger  v.  Western 
Investment  Co.,  221  U.  S.  286,  31  Sup.  Ct.  578,  55  L.  ed.  738. 


§§414,415       CONSTRUCTION — SAVING    CLAUSE,    ETC.  263 

where  any  such  city  and  county  or  incorporated  city 
or  town  shall  have  elected  to  continue  any  powers  re- 
specting public  utilities,  it  may,  by  a  vote  of  a  major- 
ity of  its  qualified  electors  voting  thereon,  thereafter 
surrender  such  powers  to  the  Commission  in  the  man- 
ner to  be  prescribed  by  the  legislature;  or  if  such  mu- 
nicipal corporation  shall  have  surrendered  any  powers 
to  the  Commission,  it  may,  by  like  vote,  thereafter 
reinvest  itself  with  such  power.2 

§  414.  Effect  of  Act  on  Pending  Actions  and  Pro- 
ceedings.— This  act  shall  not  affect  pending  actions 
or  proceedings  brought  by  or  against  the  people  of 
the  state  of  California  or  the  Commission,  or  by  any 
other  person  or  corporation  under  the  provisions  of 
chapters  20  or  386  of  the  Laws  of  1911,  but  the  same 
may  be  prosecuted  and  defended  with  the  same  effect 
as  though  this  act  had  not  been  passed.  Any  inves- 
tigation, hearing,  or  examination  undertaken,  com- 
menced, instituted  or  prosecuted  prior  to  the  taking 
effect  of  this  act  may  be  conducted  and  continued  to 
a  final  determination  in  the  same  manner  and  with 
the  same  effect  as  if  it  had  been  undertaken,  com- 
menced, instituted  or  prosecuted  in  accordance  with 
the  provisions  of  this  act.3 

§  415.    Ratification  of  Act  and  Proceedings  of 

Commission. — All  proceedings  hitherto  taken  by  the 
Commission  in  any  such  investigation,  hearing  or  ex- 
amination are  hereby  ratified,  approved,  validated  and 
confirmed  and  all  such  proceedings  shall  have  the 
same  force  and  effect  as  if  they  had  been  undertaken, 
commenced,  instituted,  and  prosecuted  under  the  pro- 

2  Section  82,  p.  63. 

8  Section  83   (a),  p.  63. 

Strict  construction  to  be  given  to  a  law  admitting  of  but  one  penalty, 
and  that  of  the  harshest  possible  character.  Chicago  &  Alton  E.  Co. 
v.  People  ex  rel.  Koerner,  67  111.  11. 


264  CALIFORNIA   PUBLIC    UTILITIES  ACT.         §§  416—119 

visions  of  this  act  and  in  the  manner  herein  pre- 
scribed.4 

§  416.  Cause  of  Action  shall  not  Abate — Ac- 
tion may  be  Brought  Under  This  Act. — No  cause  of 
action  arising  under  the  provisions  of  chapters  20  or 
386  of  the  Laws  of  1911  shall  abate  by  reason  of  the 
passage  of  this  act,  whether  a  suit  or  action  has  been 
instituted  thereon  at  the  time  of  the  taking  effect  of 
this  act  or  not,  but  actions  may  be  brought  upon  such 
causes  in  the  same  manner,  under  the  same  terms  and 
conditions,  and  with  the  same  effect  as  though  said 
chapters  had  not  been  repealed.6 

§  417.    Orders,  Decisions,  etc.,  of  Commission 

— Continued  in  Force. — All  orders,  decisions,  rules  or 
regulations  heretofore  made,  issued  or  promulgated 
by  the  Commission  shall  continue  in  force  and  have 
the  same  effect  as  though  they  had  been  lawfully 
made,  issued  or  promulgated  under  the  provisions  of 
this  act.8 

§  418.    Act  to  be  Construed  Continuance  of 

Former  Acts  of  1911. — This  act,  in  so  far  as  it  em- 
braces the  same  subject  matter,  shall  be  construed  as 
a  continuation  of  chapter  20  of  the  Laws  of  1911,  ap- 
proved February  10,  1911,  and  chapter  386  of  the  Laws 
of  1911,  approved  April  6,  1911/ 

§  419.     Constitutionality — Provision  as  to. — If  any 

section,  subsection,  sentence,  clause  or  phrase  of  this 
act  is  for  any  reason  held  to  be  unconstitutional,  such 

*  Section  83   (a),  p.  63. 
6  Section  83   (b),  p.  63. 

6  Section  83  (c),  p.  63. 

7  Section  83  (d),  p.  63. 


§§420,421       CONSTRUCTION — SAVING   CLAUSE,   ETC.  265 

decision  shall  not  affect  the  validity  of  the  remaining 
portions  of  this  act.8 

§  420.    Declaration  of  Intent  of  Legislature. — 

The  legislature  hereby  declares  that  it  would  have 
passed  this  act,  and  each  section,  subsection,  sentence, 
clause  and  phrase  thereof,  irrespective  of  the  fact  that 
any  one  or  more  other  sections,  subsections,  sentences, 
clauses  or  phrases  be  declared  unconstitutional.9 

§  421.  Interstate  Commerce. — Neither  this  act  nor 
any  provision  thereof,  except  when  specifically  so 
stated,  shall  apply  or  be  construed  to  apply  to  com- 
merce with  foreign  nations  or  commerce  among  the 
several  states  of  this  Union,  except  in  so  far  as  the 

8  Section  84,  p.  63. 

Legislative  interpretation  contemporary  with  constitutional  provision 
is  entitled  to  great  weight,  and,  being  correct,  will  not  be  disturbed.  Mo. 
O.  &  G.  R.  Co.  v.  State  (Okl.),  119  Pac.  117. 

Legislature  cannot  authoritatively  fix  meaning  of  constitution,  but 
where  the  meaning  of  the  constitution  is  doubtful,  contemporaneous 
and  long-continued  construction  thereof  by  the  legislature  is  entitled  to 
great  deference,  and  may  be  supposed  to  reflect  the  same  policy  and 
modes  of  reasoning  which  prevailed  among  the  framers  of  the  constitu- 
tion. Railroad  Commission  v.  Market  St.  R.  Co.,  132  Cal.  677,  64  Pac. 
1055. 

The  fact  that  a  provision  in  a  statute  is  declared  to  be  unconstitu- 
tional will  not  affect  the  balance  of  the  act  where  such  unconstitutional 
portion  is  not  of  such  a  nature  as  to  be  inseparable  from  the  balance 
of  the  act,  but  it  can  be  eliminated  and  the  balance  of  the  act  remain 
and  be  enforced  as  an  accomplished  act.  Thus  the  supreme  court  has 
held  that  the  provision  of  the  irrigation  law  of  1897  for  an  appeal  to 
the  superior  court  from  the  determination  of  the  board  of  supervisors, 
having  been  declared  to  be  unconstitutional  by  the  supreme  court  in  the 
ease  of  Chinn  v.  Superior  Court,  156  Cal.  478,  105  Pac.  580,  does  not 
destroy  the  act  as  a  whole.  The  act  would  have  been  valid  without  such 
provision.  The  general  machinery  of  the  law  provides  ample  protection 
to  the  land  owners  and  every  reasonable  opportunity  to  correct  specific 
abuses  (Inglin  v.  Hoppin,  156  Cal.  483,  105  Pac.  582),  so  that  the  act  can 
well  stand  as  an  entire  and  complete  scheme  after  the  elimination  of  the 
provision  touching  appeal.  In  re  Bonds  of  So.  San  Joaquin  Irr.  Dist. 
(Cal.),   119   Pac.   198. 

o  Section  84,  p.  63. 


266  CALIFORNIA   PUBLIC    UTILITIES  ACT.         §§422-424 

same  may  be  permitted  under  the  provisions  of  the 
constitution  of  the  United  States  and  the  acts  of  Con- 
gress.10 

§  422.  Appropriation. — All  moneys  whi  >h  are  paid 
into  the  state  treasury  by  the  Commission  up  to  and 
including  the  thirtieth  day  of  June,  1913,  under  the 
provisions  of  section  57  of  this  act,  and  credited  to  the 
Kailroad  Commission  Fund,  are  hereby  appropriated, 
to  be  used  by  the  Commission  in  carrying  out  the  pro- 
visions of  this  act,  and  the  controller  is  hereby  di- 
rected to  draw  his  warrant  on  said  fund  from  time 
to  time  in  favor  of  the  Commission  for  the  amounts 
expended  under  its  direction,  and  the  treasurer  is 
hereby  authorized  and  directed  to  pay  the  same.11 

§  423.  Repeals. — The  Kailroad  Commission  Act, 
approved  February  10,  1911,  and  the  act  entitled  "An 
act  to  amend  the  Railroad  Commission  Act  by  amend- 
ing section  15  thereof  relating  to  powers  and  duties 
of  the  Railroad  Commission  of  the  state  of  California, 
and  to  amend  section  37  thereof  relating  to  free  and 
reduced  rate  transportation  for  freight  and  passen- 
gers," approved  April  6,  1911,  and  all  acts  or  parts 
of  acts  inconsistent  with  the  provisions  of  this  act,  are 
hereby  repealed.12 

§  424.  Time  of  Going  into  Effect.— This  act  shall 
take  effect  ninety  days  after  the  final  adjournment  of 
this  session  of  the  legislature.13 

io  Section  85,  p.  64. 

11  Section  86,  p.  64. 

12  Section  87,  p.  64. 

13  Section  88,  p.  64. 


MUNICIPAL  RETENTION  OR  SURRENDER  OF  POWERS.         267 


CHAPTER  XI. 

MUNICIPAL   RETENTION   OR   SURRENDER   OF   POWERS. 

An  act  to  provide  for  submitting  to  the  qualified  elect- 
ors of  every  city  and  county,  or  incorporated  city 
or  town,  in  this  state  the  question  whether  such 
city  and  county,  or  incorporated  city  or  town, 
shall  retain  the  powers  of  control  vested  therein 
respecting  all  or  any  public  utilities,  and  provid- 
ing further  for  elections  thereafter  to  surrender 
such  powers  in  case  the  qualified  electors  of  any 
such  city  and  county,  or  incorporated  city  or 
town,  shall  have  voted  to  retain  such  powers  or  to 
reinvest  such  city  and  county,  or  incorporated 
city  or  town,  with  such  powers,  in  case  the  qual- 
ified electors  thereof  have  voted  to  surrender  such 
powers.1 

The  people  of  the  State  of  California  do  enact  as 
follows: 

Section  1.  Any  city  and  county,  or  incorporated 
city  or  town,  may  retain  its  powers  of  control  vested 
therein  respecting  any  one  or  more  classes  of  public 
utilities  and  may  thereafter  surrender  such  powers  to 
the  Railroad  Commission  of  the  state  of  California, 
hereinafter  called  the  Railroad  Commission,  or  may 
reinvest  itself  with  such  powers  as  it  may  have  sur- 
rendered to  the  Railroad  Commission,  all  as  in  this 
act  provided. 

Sec.  2.  The  term  "municipal  corporation,"  as 
used  in  this  act,  shall  be  construed  to  mean  a  city  ami 
county,  or  an  incorporated  city  or  town.  The  term 
"legislative  body,"  as  used  in  this  act,  shall  be  con- 
strued to  mean  the  board  of  supervisors,  municipal 

i  Extraordinary  Session  1911,  c.  40,  pp.  168-175. 


268  CALIFORNIA   PUBLIC    UTILITIES   ACT. 

council,  Commission  or  other  legislative  or  governing 
body  of  a  municipal  corporation. 

Sec.  3.  The  terms  "railroad  corporation,"  "street 
railroad  corporation,"  "common  carrier,"  "gas  cor- 
poration," "electrical  corporation,"  "water  corpora- 
tion," "telephone  corporation,"  "telegraph  corpora- 
tion," "wharfinger,"  "warehouseman"  and  "public 
utility,"  as  used  in  this  act,  shall  severally  have  the 
same  meaning  as  is  given  to  them,  respectively,  in 
section  2  of  the  act  known  as  the  "Public  Utilities 
Act." 

Sec.  4.  The  question  whether  any  municipal  cor- 
poration shall  retain  its  powers  of  control  respecting 
one  or  more  classes  of  public  utilities  may  be  sub- 
mitted to  the  qualified  electors  of  such  municipal  cor- 
poration, as  provided  in  this  act,  either  at  a  general 
municipal  election  or  at  a  special  election  held  therein. 
Such  question  may  be  so  submitted,  either  in  pursu- 
ance of  an  ordinance  of  intention  adopted  by  a  vote 
of  three-fifths  of  all  the  members  of  the  legislative 
body  of  such  municipal  corporation,  declaring  that 
the  public  interest  requires  the  submission  of,  and 
that  it  is  the  intention  of  such  legislative  body  to  sub- 
mit, such  question  to  a  vote  of  the  qualified  electors 
of  such  municipal  corporation,  or  in  pursuance  of  a 
petition  of  qualified  electors  of  such  municipal  cor- 
poration, as  hereinafter  provided.  Such  ordinance  of 
intention  or  such  petition,  as  the  case  may  be,  shall 
contain  the  propositions  proposed  to  be  so  submitted, 
as  set  forth  in  section  6  of  this  act.  Such  petition 
shall  be  signed  by  qualified  electors  of  such  municipal 
corporation,  equal  in  number  to  ten  per  centum  of 
such  qualified  electors,  computed  upon  the  total  num- 
ber of  votes  cast  in  such  municipal  corporation  for  all 
candidates  for  governor  at  the  last  preceding  general 
election  prior  to  the  filing  of  such  petition  at  which 
a  governor  was  elected.     Such  petition  may  consist 


MUNICIPAL  RETENTION   OR  SURRENDER  OF  POWERS.         2G9 

of  separate  papers;  provided,  that  if  any  paper  con- 
sists of  more  than  one  sheet,  it  shall  be  securely  fas- 
tened together  at  the  top.  The  signatures  need  not 
all  be  appended  to  one  sheet  or  paper.  Each  such 
paper  shall  have  attached  thereto,  at  the  bottom  of 
the  last  sheet  thereof,  the  affidavit  of  a  qualified 
elector  of  such  municipal  corporation,  stating  that  all 
of  the  signatures  on  each  sheet  thereof  were  made  in 
his  presence,  and  that  to  the  best  of  his  knowledge 
and  belief  each  signature  is  the  genuine  signature  of 
the  person  whose  name  purports  to  be  thereto  sub- 
scribed. Such  petition  shall  be  filed  with  the  clerk 
of  the  legislative  body  of  such  municipal  corporation. 
Within  ten  days  from  the  date  of  the  filing  of  such 
petition,  said  clerk  shall  examine  the  petition  and 
ascertain  from  the  record  of  the  registration  of  the 
electors  of  the  city  and  county,  or  of  the  county  in 
which  such  municipal  corporation  is  situated,  whether 
the  petition  is  signed  by  the  requisite  number  of  the 
qualified  electors  of  such  municipal  corporation;  and 
if  requested  by  said  clerk,  the  said  legislative  body 
of  said  municipal  corporation  shall  authorize  him  to 
employ  persons  specially  to  assist  him  in  the  work  of 
examining  such  petition  and  shall  provide  for  their 
compensation.  Upon  the  completion  of  such  exam- 
ination, said  clerk  shall  forthwith  attach  to  said  peti- 
tion his  certificate,  properly  dated,  showing  the  result 
of  such  examination.  If  from  such  examination,  said 
clerk  shall  find  that  said  petition  is  signed  by  the 
requisite  number  of  qualified  electors,  he  shall  certify 
that  the  same  is  sufficient;  but  if,  from  such  examina- 
tion, he  shall  find  that  said  petition  is  not  signed  by 
such  requisite  number  of  qualified  electors,  he  shall 
certify  to  the  number  of  qualified  electors  signing 
such  petition  and  to  the  number  of  qualified  electors 
required  to  make  such  petition  sufficient.  If  by  the 
certificate  of  said  clerk  the  petition  is  shown  to  be  in- 


270  CALIFORNIA   PUBLIC   UTILITIES   ACT. 

sufficient,  it  may  be  amended  by  filing  a  supplemental 
petition  within  ten  days  from  the  date  of  such  certifi- 
cate. Said  clerk  shall,  within  ten  days  from  the  filing 
of  such  supplemental  petition,  make  like  examination 
of  the  same  and  certify  to  the  result  of  such  examina- 
tion as  hereinbefore  provided.  If  the  certificate  of 
the  clerk  shall  show  any  such  petition,  or  any  such 
petition  together  with  a  supplemental  petition,  to  be 
insufficient,  it  shall  be  retained  by  him  and  kept  as  a 
public  record,  without  prejudice,  however,  to  the  fil- 
ing of  a  new  petition  to  the  same  effect.  But  if,  by 
the  certificate  of  the  clerk,  such  petition,  or  such  peti- 
tion together  with  a  supplemental  petition,  is  shown 
to  be  sufficient,  the  clerk  shall  forthwith  present  the 
same  to  the  legislative  body  of  such  municipal  cor- 
poration. The  sufficiency  or  insufficiency  of  such  peti- 
tion shall  not  be  subject  to  review  by  such  legislative 
body.  After  the  election  held  in  pursuance  of  such 
petition,  the  sufficiency  of  such  petition  in  any  respect 
shall  not  be  subject  to  judicial  review  or  be  otherwise 
questioned.  In  any  city  and  county  having  a  board 
of  election  commissioners  and  a  registrar  of  voters, 
the  clerk  of  the  legislative  body  thereof  shall  imme- 
diately upon  the  filing  of  any  petition  with  him,  trans- 
mit the  same  to  such  board  of  election  commissioners, 
who  shall  forthwith  deliver  such  petition  to  said  regis- 
trar of  voters,  who  shall  perform  all  the  duties  herein 
required  to  be  performed  in  other  municipal  corpora- 
tions by  the  clerk  of  the  legislative  body  thereof,  re- 
specting the  examination  and  certification  of  such 
petition.  Such  registrar  of  voters  shall,  upon  making 
his  certificate,  forthwith  return  said  petition  to  said 
clerk,  who  shall  thereupon  present  such  petition  and 
the  certificate  thereto  attached  to  the  legislative  body 
of  such  municipal  corporation  as  hereinbefore  in  this 
section  provided. 


MUNICIPAL  RETENTION  OR  SURRENDER  OF  POWERS.         271 

Sec.  5.  Upon  the  adoption  of  such  ordinance  of  in- 
tention, or  the  presentation  as  aforesaid  of  such  peti- 
tion, as  provided  in  section  4  of  this  act,  the  legislative 
body  of  such  municipal  corporation  shall,  by  ordi- 
nance, order  the  holding  of  a  special  election  for  the 
purpose  of  submitting  to  the  qualified  electors  of  such 
municipal  corporation  the  propositions  set  forth  in 
such  ordinance  of  intention  or  in  such  petition,  as  the 
case  may  be,  which  propositions  shall  be  those  set 
forth  in  section  6  of  this  act,  or  such  legislative  body 
shall,  by  ordinance,  order  the  submission  of  such 
propositions  at  a  general  municipal  election,  as  here- 
inafter provided.  Such  special  election  shall  be  held 
not  less  than  twenty  days  nor  more  than  sixty  days 
after  the  adoption  of  the  ordinance  of  intention  pro- 
vided for  in  section  4  of  this  act,  or  the  presentation 
of  such  petition  to  said  legislative  body;  provided, 
that  if  a  general  municipal  election  shall  occur  in  said 
municipal  corporation  not  less  than  twenty  days  nor 
more  than  sixty  days  after  the  adoption  of  said  ordi- 
nance of  intention  or  the  presentation  of  said  petition 
to  said  legislative  body,  said  propositions  may  be  sub- 
mitted at  such  general  municipal  election,  in  the  same 
manner  as  other  propositions  are  required  by  law  to 
be  submitted  at  general  municipal  elections  in  such 
municipal  corporation.  Every  special  election  held  in 
any  municipal  corporation  under  the  provisions  of 
this  act,  shall  be  called  by  the  legislative  body  thereof, 
by  ordinance,  which  shall  specify  the  propositions  to 
be  submitted  at  such  election  and  the  date  thereof, 
and,  where  provision  is  not  otherwise  made  by  law, 
shall  establish  the  election  precincts  therefor  and  des- 
ignate the  polling  places  therein,  and  the  names  of 
the  election  officers  for  each  such  precinct.  Such  or- 
dinance shall,  prior  to  such  election,  be  published  five 
times  in  a  daily  newspaper  printed  and  published  in 
such  municipal  corporation,  or  twice  in  a  weekly  news- 


272  CALIFORNIA   PUBLIC    UTILITIES   ACT. 

paper  printed  and  published  therein,  if  there  be  no 
such  daily  newspaper;  provided,  that  if  no  such  daily 
or  weekly  newspaper  be  printed  and  published  in  such 
municipal  corporation,  the  clerk  of  said  legislative 
body  shall  post  a  copy  of  said  ordinance  in  three  pub- 
lic places  in  such  municipal  corporation  at  least  ten 
days  prior  to  such  election.  The  propositions  sub- 
mitted under  this  section  at  any  general  municipal 
election  or  at  any  special  election  shall  be  the  same  as 
those  set  forth  in  section  6  of  this  act. 

Sec.  6.  The  ballots  to  be  used  at  any  general  mu- 
nicipal election  or  at  any  special  election,  at  which  is 
submitted  the  question  whether  a  municipal  corpora- 
tion shall  retain  its  powers  of  control  respecting  pub- 
lic utilities  shall  have  printed  thereon,  in  addition  to 
the  other  matters  required  by  law,  the  following 
propositions : 

"Proposition  No.  1.  Shall  (name  of  mu- 
nicipal corporation)  retain  its  powers  of  control  over 
railroad  corporations  ? ' ' 

"Proposition  No.  2.  Shall (name  of  mu- 
nicipal corporation)  retain  its  powers  of  control  over 
street  railroad  corporations?" 

"Proposition  No.  3.  Shall  (name  of  mu- 
nicipal corporation)  retain  its  powers  of  control  over 
common  carriers  other  than  railroad  and  street  rail- 
road corporations?" 

"Proposition  No.  4.  Shall (name  of  mu- 
nicipal corporation)  retain  its  powers  of  control  over 
gas  corporations?" 

"Proposition  No.  5.  Shall (name  of  mu- 
nicipal corporation)  retain  its  powers  of  control  over 
electrical  corporations  ? ' ' 

"Proposition  No.  6.  Shall (name  of  mu- 
nicipal corporation)  retain  its  powers  of  control  over 
telephone  corporations  ? ' ' 


MUNICIPAL  RETENTION   OB  SURRENDER  OF  POWERS.         273 

"Proposition  No.  7.  Shall  (name  of  mu- 
nicipal corporation)  retain  its  powers  of  control  over 
telegraph  corporations?" 

''Proposition  No.  8.  Shall  (name  of  mu- 
nicipal corporation)  retain  its  powers  of  control  over 
water  corporations?" 

"Proposition  No.  9.  Shall (name  of  mu- 
nicipal corporation)  retain  its  powers  of  control  over 
wharfingers?" 

"Proposition  No.  10.  Shall (name  of  mu- 
nicipal corporation)  retain  its  powers  of  control  over 
warehousemen  ? ' ' 

Opposite  each  such  proposition  to  be  voted  upon, 
and  to  the  right  thereof,  the  words  "Yes"  and  "No" 
shall  be  printed  on  separate  lines,  with  voting  squares. 
Any  voter  desiring  to  vote  in  favor  of  the  retention  of 
the  powers  of  control  of  such  municipal  corporation 
respecting  any  particular  class  of  public  utility,  shall 
stamp  a  cross  (X)  in  the  voting  square  after  the 
printed  word  "Yes"  opposite  the  proposition  as  to 
such  class,  and  any  voter  desiring  to  vote  against  the 
retention  of  such  powers  of  such  municipal  corpora- 
tion respecting  any  particular  class  of  public  utility, 
shall  stamp  a  cross  (X)  in  the  voting  square  after  the 
printed  word  "No"  opposite  such  proposition. 

Sec.  7.  If  the  propositions  specified  in  section  6  of 
this  act  shall  have  been  submitted  at  a  special  election 
in  any  municipal  corporation,  then  the  legislative 
body  or  other  body  or  board  charged  with  the  duty 
of  canvassing  the  returns  and  declaring  the  result  of 
elections  in  such  municipal  corporation,  shall  meet  at 
their  usual  place  of  meeting  on  the  first  Monday  after 
such  election  to  canvass  the  returns  and  declare  the 
result  thereof.  Immediately  upon  the  completion  of 
such  canvass,  or  upon  the  completion  of  the  canvass 
of  the  returns  of  any  general  municipal  election  at 

18 


274  CALIFORNIA   PUBLIC    UTILITIES   ACT. 

which  such  propositions  shall  have  been  submitted, 
such  legislative  body  or  other  body  or  board  charged 
with  said  duty  shall  make  an  order  declaring  the  re- 
sult of  the  election  upon  such  propositions  and  shall 
cause  the  same  to  be  entered  upon  its  minutes,  which 
order  shall  show  the  total  number  of  votes  cast  upon 
each  such  proposition,  and  the  number  of  votes  cast 
respectively  in  favor  of  and  against  each  such  proposi- 
tion. If  it  shall  appear  from  the  result  of  such  elec- 
tion, as  so  declared,  that  a  majority  of  the  qualified 
electors  of  such  municipal  corporation  voting  on  any 
proposition  submitted,  as  provided  in  section  5  of  this 
act,  shall  have  voted  to  retain  the  powers  of  control 
of  such  municipal  corporation  respecting  any  particu- 
lar class  of  public  utility,  such  municipal  corporation 
shall  be  deemed  to  have  elected  to  retain  such  powers 
of  control  respecting  such  class  of  public  utility,  and 
such  powers  shall  be  exercised  by  such  municipal  cor- 
poration until  the  same  may  be  surrendered  as  here- 
inafter provided;  and  if  it  shall  appear  from  the  result 
of  such  election,  as  so  declared,  that  a  majority  of  such 
qualified  electors  so  voting  on  any  such  proposition 
shall  have  voted  not  to  retain  such  powers  respecting 
any  class  of  public  utility,  such  municipal  corporation 
shall  be  deemed  to  have  elected  not  to  retain  such 
powers  of  control  respecting  such  class  of  public  util- 
ity, and  such  power  of  control  shall  thereafter  vest  in 
and  be  exercised  by  the  Eailroad  Commission  as  pro- 
vided by  law.  Immediately  upon  the  entry  of  the  or- 
der declaring  the  result  of  the  election  as  to  such 
proposition,  the  clerk  of  the  legislative  body  or  the 
registrar  of  voters  in  any  municipal  corporation  hav- 
ing a  board  of  election  commissioners  and  a  registrar 
of  voters,  shall  make  copies,  in  duplicate,  of  such  or- 
der, and  shall  attach  to  each  such  copy  his  certificate 
under  the  seal,  if  any,  of  such  municipal  corporation, 
or  of  such  board  of  election  commissioners,  certifying 


MUNICIPAL  RETENTION   OR  SURRENDER  OF  POWERS.         275 

that  the  same  is  a  true  and  correct  copy  of  such  order. 
Said  clerk  or  registrar  of  voters,  as  the  case  may  be, 
shall  forthwith  file  one  of  said  copies  in  the  office  of 
the  Railroad  Commission  of  the  state  of  California 
and  the  other  in  the  office  of  the  Secretary  of  State. 
Immediately  upon  the  filing  of  such  certified  copy  of 
such  order  in  the  office  of  the  Railroad  Commission, 
the  powers  of  control  theretofore  vested  in  such  mu- 
nicipal corporation  over  any  class  or  classes  of  public 
utilities  which  a  majority  of  the  qualified  electors  of 
such  municipal  corporation  voting  thereof  [n]  shall 
have  voted  not  to  retain,  as  shown  by  such  order  shall 
thereupon  vest  in  and  be  exercised  by  the  Railroad 
Commission,  until  such  municipal  corporation  shall  re- 
invest itself  with  such  powers  of  control  as  hereinafter 
provided. 

Sec.  8.  Any  municipal  corporation  which  shall 
have  voted  to  retain  the  powers  of  control  vested 
therein  respecting  any  class  or  classes  of  public  util- 
ities, or  which  may  have  reinvested  itself  with  such 
power,  as  hereinafter  provided,  may  thereafter  sur- 
render its  powers  of  control  as  to  such  class  or  classes 
of  public  utilities  at  a  general  municipal  election  or  a 
special  election  therein,  called  for  that  purpose.  The 
ballots  to  be  used  at  such  election  shall  have  printed 
thereon,  in  addition  to  the  other  matters  required  by 
law,  separate  propositions  as  to  each  of  the  classes  of 
public  utilities  as  to  which  such  municipal  corporation 
may  theretofore  have  voted  to  retain  its  powers  of 
control  or  with  which  it  may  have  reinvested  itself. 
As  to  each  of  such  classes  of  public  utilities,  and  in 
addition  to  the  other  matters  required  by  law  to  be 
printed  thereon,  a  proposition  shall  be  printed  on  the 
ballot  to  be  used  at  such  election  in  substantially  the 

following  form:  " Shall (name  of  municipal 

corporation)  surrender  its  powers  of  control  over 
(here  insert  class  of  public  utility)   to  the 


276  CALIFORNIA   PUBLIC   UTILITIES   ACT. 

railroad  commission?"  Opposite  each  such  proposi- 
tion to  be  voted  upon,  and  to  the  right  thereof,  the 
words  "Yes"  and  "No"  shall  be  printed  on  separate 
lines,  with  voting  squares.  Any  elector  desiring  to 
vote  to  surrender  the  powers  of  control  of  such  mu- 
nicipal corporation  over  any  class  of  public  utility 
specified  on  the  ballot,  shall  stamp  a  cross  (X)  in  the 
voting  square  opposite  the  printed  word  "Yes,"  after 
the  proposition  as  to  such  class;  and  any  elector  de- 
siring to  vote  not  to  surrender  the  powers  of  control 
of  such  municipal  corporation  over  such  class  of  pub- 
lic utility,  shall  stamp  a  cross  ( X )  in  the  voting  square 
opposite  the  printed  word  "No"  after  the  proposi- 
tion as  to  such  class.  The  provisions  of  sections  4,  5 
and  7  of  this  act,  in  so  far  as  applicable,  shall  govern 
elections  called,  conducted  and  held  under  the  provi- 
sions of  this  section  and  to  general  municipal  elec- 
tions at  which  such  propositions  shall  be  submitted. 
If  it  shall  appear  from  the  result  of  such  election  de- 
clared as  provided  in  section  7  of  this  act,  that  a 
majority  of  the  qualified  electors  of  such  municipal 
corporation  voting  on  any  proposition  submitted  as 
provided  in  this  section,  shall  have  voted  to  surrender 
the  powers  of  control  of  such  municipal  corporation 
respecting  any  particular  class  of  public  utility,  such 
municipal  corporation  shall  be  deemed  to  have  sur- 
rendered its  powers  of  control  as  to  such  class  of  pub- 
lic utility  to  the  Railroad  Commission,  and  such 
powers  shall  thereafter  vest  in  and  be  exercised  by 
the  Railroad  Commission,  as  provided  by  law,  upon 
the  filing,  in  the  office  of  the  Railroad  Commission,  of 
a  certified  copy  of  the  order  declaring  the  result  of 
such  election  until  such  municipal  corporation  shall 
reinvest  itself  with  such  powers  as  hereinafter  pro- 
vided; and  if  it  shall  appear  from  the  result  of  such 
election,  as  declared,  that  a  majority  of  such  qualified 
electors  voting  on  any  such  proposition  shall  have 


MUNICIPAL  RETENTION   OR  SURRENDER  OF  POWERS.         277 

voted  not  to  surrender  such  powers  of  control  respect- 
ing any  particular  class  of  public  utility,  such  powers 
of  control  shall  continue  in  such  municipal  corpora- 
tion; provided,  however,  that  such  powers  of  control 
may  thereafter  be  surrendered  by  such  municipal  cor- 
poration at  any  subsequent  election  at  which  the  ques- 
tion of  such  surrender  may  again  be  submitted  under 
the  provisions  of  this  act. 

Sec.  9.  Any  municipal  corporation  that  shall  have 
surrendered  to  the  Railroad  Commission  powers  of 
control  respecting  any  class  of  public  utility  may 
thereafter  reinvest  itself  with  such  powers  by  a  vote 
of  the  qualified  electors  thereof  taken  at  a  general  mu- 
nicipal election  or  at  a  special  election.  The  ballots 
to  be  used  at  such  election  shall  have  printed  thereon, 
in  addition  to  the  other  matters  required  by  law,  sepa- 
rate propositions  as  to  each  class  of  public  utility  des- 
ignated in  the  petition  for  such  election  or  in  the  or- 
dinance of  intention.  As  to  each  such  class  of  public 
utility,  a  proposition  shall  be  printed  on  the  ballot  in 

substantially    the    following    form:    "Shall    

(name  of  municipal  corporation)  reinvest  itself  with 
powers  of  control  over (class  of  public  util- 
ity)?" Opposite  each  such  proposition  to  be  voted 
upon  and  to  the  right  thereof,  the  words  "Yes"  and 
"No"  shall  be  printed  on  separate  lines,  with  voting 
squares.  Any  elector  desiring  to  vote  to  reinvest  such 
municipal  corporation  with  powers  of  control  respect- 
ing any  class  of  public  utility  designated  on  the  ballot 
shall  stamp  a  cross  (X)  in  the  voting  square  after  the 
printed  word  "Yes"  opposite  the  proposition  as  to 
such  class,  and  any  elector  desiring  to  vote  not  to  re- 
invest such  municipal  corporation  with  powers  re- 
specting such  class  of  public  utility  shall  stamp  a  cross 
(X)  in  the  voting  square  after  the  printed  word  "Xo" 
opposite  such  proposition.  The  provisions  of  sections 
4,  5  and  7  of  this  act,  in  so  far  as  applicable,  shall  ap- 


278  CALIFORNIA  PUBLIC   UTILITIES  ACT. 

ply  to  elections  called,  conducted  and  held  under  the 
provisions  of  this  section  and  to  general  municipal 
elections  at  which  such  propositions  shall  be  sub- 
mitted. If  it  shall  appear  from  the  result  of  such  elec- 
tion, declared  as  provided  in  said  section  7,  that  a 
majority  of  the  qualified  electors  of  such  municipal 
corporation  voting  on  any  proposition  submitted  as 
provided  in  this  section  shall  have  voted  to  reinvest 
such  municipal  corporation  with  powers  of  control  re- 
specting any  particular  class  of  public  utility,  such 
municipal  corporation  shall  be  deemed  to  have  rein- 
vested itself  with  such  powers,  and  upon  the  filing  in 
the  office  of  the  Railroad  Commission  of  a  certified 
copy  of  the  order  declaring  the  result  of  such  election, 
the  powers  of  control  with  which  such  municipal  cor- 
poration shall  have  voted  to  reinvest  itself,  as  shown 
by  such  order,  shall  cease  to  be  exercised  by  the  Rail- 
road Commission,  and  shall  vest  in  and  be  exercised 
by  such  municipal  corporation ;  and  if  it  shall  appear 
from  the  result  of  such  election,  as  declared,  that  a 
majority  of  the  qualified  electors  of  such  municipal 
corporation  voting  on  any  such  proposition,  as  pro- 
vided in  this  section,  shall  have  voted  not  to  reinvest 
such  municipal  corporation  with  powers  of  control 
respecting  any  particular  class  of  public  utility,  such 
powers  of  control  shall  continue  in  and  be  exercised 
by  the  Railroad  Commission;  provided,  that  such  mu- 
nicipal corporation  may  thereafter  reinvest  itself  with 
such  powers  of  control  at  any  subsequent  election  at 
which  such  question  may  be  again  so  submitted  under 
the  provisions  of  this  act. 

Sec.  10.  The  holding  of  a  special  election  or  elec- 
tions, or  the  submission  of  propositions  at  any  general 
municipal  election,  under  any  of  the  provisions  of  this 
act,  shall  not  be  construed  to  preclude  the  holding  of 
a  subsequent  special  election  or  elections  or  the  subse- 
quent submission  of  propositions  at  a  general  munici- 


MUNICIPAL  RETENTION  OR  SURRENDER  OF  POWERS.         279 

pal  election  or  elections,  on  the  question  of  the  re- 
tention, surrender  or  reinvestment  by  a  municipal 
corporation  of  its  powers  of  control  respecting  any 
class  or  classes  of  public  utilities,  as  in  this  act  pro- 
vided; provided,  that  not  more  than  one  such  special 
election  shall  be  held  within  any  period  of  twelve 
months. 

Sec.  11.  Except  as  otherwise  in  this  act  provided, 
the  holding  and  conducting  of  elections  under  the  pro- 
visions of  this  act,  the  form  of  the  ballots  used,  the 
opening  and  closing  of  the  polls,  the  canvass  of  the 
returns  and  the  declaring  of  the  result  shall  conform, 
as  nearly  as  may  be,  to  such  laws  as  shall  now  or  here- 
after be  applicable  to  special  municipal  elections  held 
in  the  municipal  corporation  affected.  [Chapter  40 
of  Laws  of  Extraordinary  Session  of  Legislature  1911, 
approved  January  2,  1912,  p.  168.] 


280  CALIFORNIA  PUBLIC    UTILITIES   ACT. 


CHAPTER  XII. 

RULES  OF  PRACTICE  AND  PROCEDURE  GOVERNING  FORMAL 
MATTERS  BEFORE  THE  RAILROAD  COMMISSION  OF  THE 
STATE  OF  CALIFORNIA. 

Adopted  March  13,  1912. 
Effective  March  23,  1912 
Rule       I.     Definitions. 

1.  Public  Utility. 

2.  Commission. 

3.  Formal    Proceeding. 

4.  Complaint. 

5.  Application. 

6.  Financial  Condition. 
Rule     II.     Sessions  of  Commission. 

Rule  in.     Secretary  to  Furnish  Information. 

Rule  rV.     Formal   Proceedings — General  Matters   Applicable   to   All. 

1.  Address   of   Commission. 

2.  Case  Numbers. 

3.  Form  and  Size  of  Papers  Filed. 

4.  Amendments. 

5.  Subpoenas. 

6.  Service    of   Papers. 

7.  Filing  or  Entry  and  Service  of  Orders. 

8.  Intervention. 

Rule     V.     Complaints — Contents   and   Proceedings   Up   to   Hearing. 

1.  Who  may  Complain. 

2.  Contents  of  Complaint. 

3.  Signature  of   Complaint. 

4.  Copies   to   Accompany   Complaint. 

5.  Procedure  of  Commission  on  Filing  of  Complaint. 

6.  Satisfaction   of   Complaint. 

7.  Answer  to  Complaint. 

Rule  VI.     Hearings  and  Rehearings — In   All  Formal  Proceedings. 

1.  When  Hearing  will  be  Given. 

2.  Notice   of   Place   of   Hearing. 

3.  Stipulation  as  to  Facts. 

4.  Procedure  at  Hearings. 

5.  Adjournments. 

6.  Briefs. 

7.  Investigations  on  Commission's  Own  Motion. 

8.  Rehearings. 

Rule        VII.     Switch  Connections  and  Spurs — Complaints  for. 
Rule      VIII.     Value   of   Property   of   Public   Utilities. 


RULES  OF  PRACTICE  AND  PROCEDURE. 


2S1 


Rule  IX.     Applications — General   Matters   Applicable   to   AIL 

1.  Contents   of  Application. 

2.  Documents   Filed   With   Application. 

3.  Procedure  of  Commission  on  Filing  of  Petition. 
Rule            X.     Eailroad    Crossings — Applications    for    Construction,    Al- 
teration   or    Abolition    of. 

Rule  XI.     Safety  Devices  at  Railroad  Crossings — Applications  for. 

Rule        XII.     New  Construction  or  Extensions — Applications  for. 

Rule      XIII.     Franchises   and  Permits — Applications  for  Permission  to 

Exercise. 
Rule       XIV.     Sale,  Lease,  Assignment,  Mortgage  or  Other  Disposition 

of  Property — Applications  for. 

Rule  XV.  Acquisition  of  Part  or  All  of  Capital  Stock  of  Another 
Public  Utility — Applications  for. 

Rule  XVI.  Stocks,  Bonds,  Notes  and  Other  Evidences  of  Indebted- 
ness— Applications  for  Order  Authorizing  Issue  of. 

Rule  XVII.  Increases  in  Charges — Applications  for  Permission  to 
Make. 

Rule  XVILI.  Long  and  Short  Haul  Rule:  Thirty  Day  Notice  Rule- 
Applications  for  Relief  From. 

Rule  XIX.  Excessive  or  Discriminatory  Charges — Applications  for 
Permission  to  Refund. 

Rule  XX.  Extensions  of  Time  to  File  Required  Reports,  Statements 
or  Data  or  to  Comply  with  Commission's  Orders — Ap- 
plications for. 

Rule       XXI.     Other  Applications. 

Rule     XXII.     Deviations  from  Rules — Authorizations  for. 

Rule  XXIII.     Amendment  of  Rules. 

Rule    XXIV.     Forms  Prescribed  for  Use. 


The  following  rules  of  practice  and  procedure  are 
adopted  by  the  Railroad  Commission  of  the  state  of 
California  in  accordance  with  the  provisions  of  section 
53  of  the  Public  Utilities  Act: 

Rule  I..  Definitions.— (1)  The  Term  ''Public  Util- 
ity," when  used  in  these  rules,  includes  every  common 
carrier,  pipe-line  corporation,  gas  corporation,  elec- 
trical corporation,  telephone  corporation,  telegraph 
corporation,  water  corporation,  wharfinger  and  ware- 
houseman, as  those  terms  are  defined  in  section  -  of 
the  Public  Utilities  Act. 


282  CALIFORNIA   PUBLIC    UTILITIES   ACT. 

(2)  The  Term  "Commission,"  when  used  in  these 
rules,  means  the  Railroad  Commission  of  the  State  of 
California. 

(3)  The  Term"  Formal  Proceeding,"  when  used  in 
these  rules,  means  a  proceeding  which  contemplates  a 
hearing  before  the  Commission  or  a  commissioner  sit- 
ting in  a  judicial  or  quasi-judicial  capacity.  A  formal 
proceeding  may  be  either  (a)  a  complaint  or  (b)  an 
application. 

(4)  The  Term  "Complaint,"  when  used  in  these 
rules,  means  a  formal  proceeding,  whether  brought 
upon  the  Commission's  own  motion  or  upon  complaint 
of  a  third  party,  having  for  its  object  the  rendition  of 
an  order  or  decision  which  can  be  enforced  by  the 
Commission. 

(5)  The  Term  "Application,"  when  used  in  these 
rules,  means  a  formal  proceeding  brought  by  a  public 
utility,  for  the  purpose  of  securing  the  Commission's 
authorization  or  permission  to  perform  an  act. 

(6)  The  Term  "Financial  Condition,"  when  used 
in  these  rules  with  reference  to  an  application,  means 
the  financial  condition  of  the  applicant  as  shown  by  a 
schedule  or  schedules,  annexed  to  the  petition  and 
properly  referred  to  therein,  and  showing: 

(a)  Amount  and  kinds  of  stock  authorized. 

(b)  Amount  and  kinds  of  stock  issued  and  out- 
standing. 

(c)  Terms  of  preference  of  all  preferred  stock, 
whether  cumulative  or  participating,  or  on  dividends 
or  assets,  or  otherwise. 

(d)  Brief  description  of  each  mortgage  upon  prop- 
erty of  applicant,  giving  date  of  execution,  name  of 
mortgagor,  name  of  mortgagee  or  trustee,  amount 
of  indebtedness  authorized  to  be  secured  thereby  and 
amount  of  indebtedness  actually  secured. 

(e)  Number  and  amount  of  bonds  authorized  and 
issued,  giving  name  of  the  public  utility  which  issued 


RULES  OF  PRACTICE  AND  PROCEDURE.  283 

the  same,  describing  each  class  separately,  giving  date 
of  issue,  par  value,  rate  of  interest,  date  of  maturity 
and  how  secured. 

(f)  Other  indebtedness,  giving  same  by  classes  and 
describing  security,  if  any,  with  a  brief  statement  of 
the  devolution  or  assumption  of  any  portion  of  such 
indebtedness  upon  or  by  any  corporation  or  person,  if 
the  original  liability  has  been  transferred. 

(g)  Amount  of  interest  paid  during  previous  fiscal 
year  and  rate  thereof,  with  amount  paid  at  each  rate, 
if  different  rates  were  paid,  upon  each  issue  of  in- 
debtedness. 

(h)  Rate  and  amount  of  dividends  paid  during  the 
five  previous  fiscal  years  and  the  amount  of  capital 
stock  on  which  dividends  were  paid  each  year. 

(i)  Detailed  statement  of  earnings  and  expendi- 
tures for  and  balance  sheet  showing  conditions  at  close 
of  the  last  fiscal  year,  unless  already  filed  with  the 
commission  as  part  of  the  annual  report,  in  which  case 
a  reference  to  the  filing  should  be  given. 

Rule  II.  Sessions  of  Commission. — The  office  of  the 
Commission  shall  be  in  San  Francisco,  California, 
and  shall  always  be  open,  legal  holidays  and  nonjudi- 
cial days  excepted.  The  regular  monthly  session  of 
the  Commission  shall  be  held  in  its  office  on  the  second 
Tuesday  of  every  month  at  10:30  o'clock  A.  M.,  at 
which  time  any  person  having  business  with  the  Com- 
mission may  appear  and  be  heard.  The  Commission 
will  hold  other  sessions  at  San  Francisco  and  else- 
where in  the  state  of  California  at  such  times  as  it 
may  designate.  The  sessions  of  the  Commission  shall 
be  public. 

Rule  III.  Secretary  to  Furnish  Information. — The 
Commission's  secretary  will,  upon  request,  advise  as  to 
the  form  of  complaint,  petition,  answer  or  other  docu- 
ments necessary  to  be  filed  in  any  formal  proceeding, 


284  CALIFORNIA   PUBLIC    UTILITIES   ACT. 

and  furnish  such  information  from  the  files  of  the 
Commission  as  will  conduce  to  a  full  presentation  of 
material  facts. 

Rule  IV.  Formal  Proceedings  —  General  Matters 
Applicable  to  All.— 1.  Address  of  the  Commission. 
All  communications  should  be  addressed  to  "Railroad 
Commission  of  the  State  of  California,  San  Francisco, 
California." 

2.  Case  Numbers.  The  secretary  shall  assign  to 
each  formal  proceeding  a  number  which  the  parties 
shall,  before  filing,  place  on  all  subsequent  papers  in 
such  proceeding. 

3.  Form  and  Size  of  Papers  Filed.  All  pleadings 
filed  with  the  Commission  in  formal  proceedings  shall 
be  printed  or  typewritten  on  one  side  of  the  paper  only, 
and,  as  far  as  practicable,  shall  be  upon  paper  eight 
and  one-half  by  thirteen  inches  in  size.  Each  line  and 
page  shall  be  numbered. 

4.  Amendments.  The  commission  may,  in  its  dis- 
cretion, allow  any  pleading  to  be  amended  or  corrected 
or  any  omission  therein  to  be  supplied. 

5.  Subpoenas.  Subpoenas  requiring  the  attendance 
of  a  witness  from  any  place  in  the  state  to  any  desig- 
nated place  of  hearing,  for  the  purpose  of  taking  the 
testimony  of  such  witness  orally  before  the  Commis- 
sion or  one  or  more  commissioners  may  be  issued  by 
any  commissioner  or  the  secretary. 

Subpoenas  for  the  production  of  books,  accounts, 
papers,  waybills  and  other  documents  (unless  issued 
upon  the  Commission's  own  motion)  will  only  be  is- 
sued upon  application  in  writing,  stating,  as  nearly  as 
possible,  the  books,  accounts,  papers,  waybills  or  other 
documents  desired  to  be  produced. 

6.  Service  of  Papers.  Personal  service  of  papers 
in  all  hearings,  investigations  and  formal  proceedings 


RULES   OP   PRACTICE   AND   PROCEDURE.  285 

pending  before  the  Commission  may  be  made  upon  any 
person  upon  whom  a  summons  may  be  served  in  ac- 
cordance with  the  provisions  of  the  Code  of  Civil  Pro- 
cedure of  this  state.  Service  may  also  be  made  by 
mailing*  in  a  sealed  envelope,  registered,  with  postage 
prepaid,  addressed  to  any  party  to  such  hearing,  in- 
vestigation or  formal  proceeding  or  to  any  person  upon 
whom  a  summons  may  be  served  in  accordance  with 
the  provisions  of  the  Code  of  Civil  Procedure.  If  ser- 
vice is  made  by  mailing,  and  an  act  is  to  be  performed 
within  a  specified  time  after  service,  the  time  for  the 
performance  of  the  act  shall  begin  to  run  at  the  time 
the  registered  letter  is  received.  When  any  party  has 
appeared  by  attorney,  service  upon  the  attorney  will 
be  deemed  proper  service  upon  such  party. 

7.  Filing  or  Entry  and  Service  of  Orders.  Each 
order,  authorization  or  certificate  made,  issued  or  ap- 
proved by  the  Commission  shall  be  in  writing  and  shall 
be  filed  with  or  entered  on  the  records  of  the  Commis- 
sion, in  accordance  with  the  provisions  of  the  Public 
Utilities  Act,  and  a  copy  thereof,  certified  by  the  sec- 
retary under  the  seal  of  the  Commission,  shall  be 
served  upon  or  delivered  to  the  corporation  or  person 
complained  of,  or  the  applicant,  or  his  or  its  attorney. 

8.  Intervention.  In  any  formal  proceeding,  the 
Commission  may  permit  any  corporation,  association, 
body  politic  or  person  to  intervene  and  be  heard,  after 
opportunity  has  been  given  to  the  party  or  parties  to 
such  proceeding  to  be  heard  on  such  intervention. 
Leave  thus  granted  shall  entitle  the  intervener  to  have 
notice  of  and  to -appear  at  the  taking  of  testimony,  to 
produce  and  cross-examine  witnesses,  and  to  be  heard 
in  person  or  by  counsel  on  the  argument. 

Rule  V.  Complaints  —  Contents  and  Proceedings 
Up  to  Hearing. — 1.  Who  may  Complain.  Complaint 
may  be  made  by  the  Commission  of  its  own  motion  or 


286  CALIFORNIA   PUBLIC    UTILITIES   ACT. 

by  any  corporation  or  person,  chamber  of  commerce, 
board  of  trade,  or  any  civic,  commercial,  mercantile, 
traffic,  agricultural  or  manufacturing  association  or 
organization  or  any  body  politic  or  municipal  corpora- 
tion, by  complaint  in  writing,  setting  forth  any  act  or 
thing  done  or  omitted  to  be  done  by  any  public  utility 
in  violation,  or  claimed  to  be  in  violation,  of  any  pro- 
vision of  law  or  of  any  order  or  rule  of  the  Commission, 
(a)  Any  Public  Utility  shall  have  the  right  to  com- 
plain on  any  of  the  grounds  upon  which  complaint  may 
be  made  by  other  parties. 

2.  Contents  of  Complaint.  Each  complaint  shall 
show  the  venue,  "Before  the  Railroad  Commission  of 
the  State  of  California,"  shall  bear  a  heading  showing 
the  name  of  the  complainant  and  the  name  of  the  de- 
fendant and  shall  state — 

(a)  The  full  name  and  postoffice  address  of  the  com- 
plainant. 

(b)  The  full  name  and  postoffice  address  of  the  de- 
fendant. 

(c)  Fully,  clearly  and  with  reasonable  certainty  the 
act  or  thing  done  or  omitted  to  be  done,  of  which  com- 
plaint is  made,  with  a  reference,  where  practicable,  to 
the  law,  order  or  rule,  and  the  section  or  sections 
thereof,  of  which  a  violation  is  claimed. 

(d)  Such  other  matters  or  facts,  if  any,  as  may  be 
necessary  to  acquaint  the  Commission  fully  with  the 
details  of  the  alleged  violation. 

3.  Signature  of  Complaint,  (a)  The  complaint 
shall  be  signed  by  the  complainant  or  his  attorney,  if 
any,  and  shall  show  the  name  and  postoffice  address  of 
such  attorney  and  shall  be  verified.  Complaints  by  un- 
incorporated associations  may  be  verified  by  any  offi- 
cer or  director  thereof. 

(b)  Except  upon  its  own  motion,  the  Commission 
will  entertain  no  complaint  as  to  the  reasonableness  of 


RULES   OF   PRACTICE   AND    PROCEDURE.  287 

any  rates  or  charges  of  any  gas,  electrical,  water  or 
telephone  corporation,  other  than  a  complaint  of  the 
corporation  itself,  unless  the  same  be  signed  by  the 
mayor  or  the  president  or  the  chairman  of  the  board  of 
trustees  or  a  majority  of  the  council,  Commission,  or 
other  legislative  body  of  the  city  and  county,  or  city 
or  town,  if  any,  within  which  the  alleged  violation  oc- 
curred, or  not  less  than  twenty-five  consumers  or  pur- 
chasers or  prospective  consumers  or  purchasers  of  such 
gas,  electricity,  water  or  telephone  service. 

4.  Copies  to  Accompany  Complaint.  At  the  time 
complainant  files  his  original  complaint,  he  must  also 
file  copies  thereof  equal  in  number  to  one  more  than 
twice  the  number  of  corporations  or  persons  to  be 
served. 

5.  Procedure  of  Commission  on  Filing  of  Complaint. 
Upon  the  filing  of  such  complaint,  the  Commission  shall 
immediately  mail  a  copy  thereof  to  the  defendant  or 
defendants  and  shall  also  examine  the  same  to  ascer- 
tain whether  it  establishes  a  prima  facie  case  and  con- 
forms to  these  rules.  At  any  time  within  five  days 
after  the  receipt  by  a  defendant  of  such  copy  of  such 
complaint,  he  may,  in  writing,  call  the  Commission's 
attention  to  any  defects  therein,  but  this  privilege  shall 
not  in  anywise,  unless  the  Commission  specifically  so 
orders,  extend  the  time  within  which  such  defendant 
is  required  to  satisfy  the  complaint  or  to  answer.  If 
the  Commission  is  of  the  opinion  that  the  complaint 
does  not  establish  a  prima  facie  case  or  does  not  con- 
form to  these  rules,  it  shall  notify  the  complainant  or 
his  attorney  to  that  effect,  and  opportunity  may  be 
given  to  amend  the  complaint  within  a  specified  time. 
If  the  complaint  is  not  so  amended  within  such  time 
or  such  extension  thereof  as  the  Commission,  for  good 
cause  shown,  may  grant,  it  will  be  dismissed. 

If  the  Commission  is  of  the  opinion  that  such  com- 
plaint, either  as  originally  filed  or  as  amended,  does 


288  CALIFORNIA   PUBLIC    UTILITIES   ACT. 

establish  a  prima  facie  case  and  conform  to  these  rules, 
the  Commission  shall  serve  upon  each  corporation  or 
person  complained  of,  an  order  under  the  hand  of  its 
secretary  and  attested  by  its  seal,  accompanied  by  a 
copy  of  said  complaint,  directed  to  such  corporation 
or  person  and  requiring  that  the  matter  complained  of 
be  satisfied,  or  that  the  complaint  be  answered  in  writ- 
ing within  ten  days  from  the  date  of  service  of  such 
order,  provided  that  the  Commission  may,  in  particular 
cases,  require  the  answer  to  be  filed  within  a  shorter 
time. 

6.  Satisfaction  of  Complaint.  If  the  defendant  de- 
sires to  satisfy  the  complaint,  he  may  submit  to  the 
Commission,  within  the  time  allowed  for  the  satisfac- 
tion or  answer,  a  statement  of  the  relief  which  he  is 
willing  to  give.  On  the  acceptance  of  this  offer  by  the 
complainant  and  the  approval  of  the  Commission,  no 
further  proceedings  need  be  taken. 

7.  Answer  to  Complaint.  If  satisfaction  be  not 
made  as  aforesaid,  the  corporation  or  person  com- 
plained of  must,  within  the  time  specified  in  the  order 
or  such  extension  thereof  as  the  Commission,  for  good 
cause  shown,  may  grant,  file  an  answer  to  the  com- 
plaint, with  admission  of  service  by  complainant  or  his 
attorney  indorsed  thereon,  or  an  affidavit  of  service. 
The  answer  must  contain  a  specific  denial  of  such  mate- 
rial allegations  of  the  complaint  as  are  controverted  by 
the  defendant  and  also  a  statement  of  any  new  matter 
constituting  a  defense.  If  the  answering  party  has 
no  information  or  belief  upon  the  subject  sufficient  to 
enable  him  to  answer  an  allegation  of  the  complaint,  he 
may  so  state  in  his  answer  and  place  his  denial  upon 
that  ground.  The  filing  of  an  answer  will  not  be 
deemed  an  admission  of  the  sufficiency  of  the  petition, 
but  a  motion  to  dismiss  may  be  made  at  the  hearing. 


EULES  OF  PRACTICE  AND  PROCEDURE.  289 

Rule  VI.  Hearings  and  Rehearings — In  All  Formal 
Proceedings. — 1.  When  Hearings  will  be  Given.  Ex- 
cept as  otherwise  determined  in  specific  cases,  the  Com- 
mission will  grant  a  hearing  in  the  following  classes  of 
cases: 

(a)  "When  an  order  to  satisfy  a  complaint  or  to  make 
answer  thereto  has  been  made  and  the  corporation  or 
person  complained  of  has  not  satisfied  the  cause  of 
complaint  (Rule  V). 

(b)  When  an  application  has  been  made  in  a  formal 
proceeding. 

2.  Notice  of  Place  of  Hearing,  (a)  Notice  of  the 
day  and  hour  of  a  hearing  shall  be  served  at  least  ten 
days  before  the  time  set  therefor,  unless  the  Commis- 
sion shall  find  that  public  necessity  requires  the  hear- 
ing to  be  held  at  an  earlier  date.  Hearings  shall  be 
held  in  the  office  of  the  Commission  in  San  Francisco 
unless  elsewhere  specified  in  the  notice. 

(b)  In  formal  applications,  the  Commission  may,  in 
its  discretion,  give  all  other  corporations  or  persons 
who  may  be  affected  thereby  an  opportunity  to  be 
heard,  either  by  service  upon  them  of  a  copy  of  the 
petition  or  by  publication  of  the  substance  thereof,  at 
the  expense  of  the  applicant,  for  such  length  of  time 
and  in  such  newspaper  or  newspapers  as  the  Commis- 
sion may  designate.  In  such  cases,  the  form  of  the 
notice  must  be  submitted  to  the  secretary  of  the  Com- 
mission for  approval,  and  proof  of  the  publication 
thereof  must  be  filed  with  the  secretary  at  or  before  the 
hearing. 

3.  Stipulation  as  to  Facts.  The  parties  to  any  pro- 
ceeding or  investigation  before  the  Commission  may, 
by  stipulation  in  writing  filed  with  the  Commission  or 
entered  in  the  record,  agree  upon  the  facts  or  any  por- 
tion thereof  involved  in  the  controversy,  which  stipu- 
lation shall  be  regarded  and  used  as  evidence  at  the 

19 


290  CALIFORNIA   PUBLIC    UTILITIES   ACT. 

hearing.  It  is  desirable  that  the  facts  be  thus  agreed 
upon  whenever  practicable.  The  Commission  may  in 
such  cases  require  such  additional  evidence  as  it  may 
deem  necessary. 

4.  Procedure  at  Hearings,  (a)  Witnesses  will  be 
examined  orally  and  under  oath  before  the  Commission 
or  a  commissioner  unless  the  facts  are  stipulated  or  the 
Commission  or  commissioner  otherwise  orders. 

(b)  The  complainant  must  establish  the  facts  upon 
which  he  bases  his  complaint,  unless  the  defendant  ad- 
mits the  same  or  fails  to  answer  the  complaint.  The 
defendant  must  likewise  give  evidence  of  the  facts  al- 
leged in  the  answer,  unless  admitted  by  the  complain- 
ant, and  must  fully  disclose  its  defense  at  the  hearing. 
In  case  of  failure  to  answer,  the  Commission  will  take 
such  proof  of  the  facts  as  may  be  deemed  proper  and 
reasonable  and  make  such  order  thereon  as  the  circum- 
stances of  the  case  may  require. 

(c)  If  documentary  evidence  is  offered,  the  Commis- 
sion, in  lieu  of  requiring  the  originals  to  be  filed,  may, 
in  its  discretion,  accept  certified,  or  otherwise  authen- 
ticated, copies  of  such  documents  or  such  portions 
of  the  same  as  may  be  relevant,  or  may  require  such 
evidence  to  be  transcribed  as  part  of  the  record. 

5.  Adjournments.  Hearings  may  be  adjourned 
from  time  to  time  by  or  at  the  direction  of  the  Com- 
mission or  a  commissioner. 

6.  Briefs.  The  Commission  or  a  commissioner  may 
require  the  submission  of  briefs. 

7.  Investigations  on  Commission's  Own  Motion. 
The  Commission  may  at  any  time,  of  its  own  motion, 
make  investigations  and  order  hearings  into  any  act 
or  thing  done  or  omitted  to  be  done  by  any  public  util- 
ity, which  the  Commission  may  believe  is  in  violation 
of  any  provision  of  law  or  of  any  order  or  rule  of  the 
Commission.    It  may  also,  through  its  own  experts  or 


RULES   OF   PRACTICE   AND   PROCEDURE.  291 

employees,  or  otherwise,  secure  such,  evidence  as  it 
may  consider  necessary  or  desirable  in  any  formal  pro- 
ceeding in  addition  to  the  evidence  presented  by  the 
parties. 

8.  Rehearings.  'Any  party  to  a  formal  proceeding 
or  any  stockholder  or  bondholder  or  other  party  pe- 
cuniarily interested  in  the  public  utility  affected  may 
apply  for  a  rehearing  as  to  any  matters  determined 
by  the  Commission  and  specified  in  the  application  for 
the  rehearing,  and  the  Commission  may  grant  and  hold 
such  rehearing  on  said  matters,  if  in  its  judgment  suffi- 
cient reason  therefor  be  made  to  appear.  Such  ap- 
plication shall  set  forth  specifically  the  ground  or 
grounds  on  which  the  applicant  considers  the  Commis- 
sion's decision  or  order  to  be  unlawful  or  erroneous. 
Eehearings  must  be  asked  for  before  the  effective  date 
of  the  decision  or  order  complained  of.  In  further  re- 
spects, rehearings  will  be  governed  by  the  provisions 
of  section  66  of  the  Public  Utilities  Act. 

Rule  VII.  Switch  Connections  and  Spurs — Com- 
plaints for. — When  complaint  is  made  for  the  installa- 
tion of  a  switch  connection  or  spur,  under  the  provi- 
sions of  section  39  of  the  Public  Utilities  Act: 

1.  The  complaint,  in  addition  to  the  requirements  of 
Rule  V,  2,  must  state: 

(a)  Character  and  amount  of  business  which  will 
probably  be  tendered  at  such  connection  or  spur. 

(b)  Length  of  track  necessary  to  be  built  by  defend- 
ant and  the  cost  of  the  same. 

2.  With  the  complaint  shall  be  filed: 

(a)  Map  on  scale  of  not  less  than  100  feet  per  inch, 
showing  location  of  existing  tracks;  property  lines; 
buildings  and  structures  in  the  vicinity;  and  the  loca- 
tion and  length  of  the  proposed  switch  connection  or 
spur.     Such  map  should  be  filed  in  triplicate;  one  copy 


292  CALIFORNIA   PUBLIC    UTILITIES   ACT. 

shall  be  on  tracing  linen  unless  waived  by  the  Com- 
mission. 

Rule  VIII.  Value  of  Property  of  Public  Utilities. 
Formal  proceedings  instituted  by  the  Commission  to 
ascertain  the  value  of  the  property  of  a  public  utility 
shall  be  conducted  as  specified  in  section  70  of  the  Pub- 
lic Utilities  Act.  Whenever  in  any  formal  proceed- 
ing the  value  of  the  property  or  a  portion  thereof  of  a 
public  utility  becomes  relevant  and  pertinent,  the  Com- 
mission may,  through  its  own  experts  and  employees, 
or  otherwise,  investigate  and  ascertain  such  value. 

Rule  IX.  Applications  —  General  Matters  Appli- 
cable to  All. — 1.  Contents  of  Application.  All  formal 
applications  must  be  by  petition  in  writing,  signed  by 
the  applicant  and  duly  verified.  The  petition  must  set 
forth  the  full  name  and  postofifice  address  of  the  ap- 
plicant and  must  show  the  full  name  and  address  of  its 
attorney,  if  any,  and  must  contain  the  facts  on  which 
the  application  is  based,  with  a  request  for  the  order, 
authorization,  permission  or  certificate  desired  and  a 
reference  to  the  particular  provision  of  law  requiring 
or  providing  for  the  same.  Three  copies  of  the  peti- 
tion shall  be  filed  with  the  original,  except  in  applica- 
tions covered  by  rules  XVII,  XVIII,  XIX  and  XX,  in 
which  cases  the-  original  petition  alone  need  be  filed. 

The  petition  must  contain  such  further  statements 
as  may  be  required  by  any  provision  of  law  or  of  these 
rules  and  must  show  in  detail  compliance  therewith. 

If  the  applicant  is  a  corporation,  there  must  be  an- 
nexed to  the  petition  a  certified  or  verified  copy  of  its 
articles  of  incorporation  or  charter  and  all  amendments 
thereof,  except  in  applications  covered  by  rules  XVII, 
XVIII,  XIX  and  XX.  If  maps  or  profiles  are  filed 
with  the  petition,  they  must  always  be  filed  in  tripli- 
cate and  one  copy  thereof  shall  be  on  tracing  linen. 


RULES   OF   PRACTICE   AND    PROCEDURE.  293 

2.  Documents  Filed  With  Application.  Whenever 
under  these  rules  any  map,  profile,  certificate,  state- 
ment or  other  document  is  required  to  be  filed  with  a 
petition  and  the  same  has  theretofore  been  filed  with 
the  Commission,  the  petition  may  state  the  fact  of  such 
filing,  with  the  date  and  the  proceedings,  in  which,  or 
occasion  on  which,  the  filing  was  made. 

3.  Procedure  of  Commission  on  Filing  of  Petition. 
Upon  the  filing  of  such  petition,  the  Commission  shall 
examine  the  same  to  see  whether  it  establishes  a  prima 
facie  case  for  action  on  the  part  of  the  Commission 
and  conforms  to  these  rules.  If  the  petition  fails  in 
either  of  these  respects,  the  Commission  will  give  no- 
tice of  the  defects  to  the  applicant,  who  may  correct 
the  same.  If  the  petition  be  found  to  state  a  prima 
facie  case  and  to  comply  with  the  rules,  the  Commis- 
sion may  make  an  order  ex  parte  granting  the  appli- 
cation or  will  appoint  a  time  and  place  for  a  hearing 
on  the  same,  provided  that  a  hearing  shall  always  be 
held  when  provided  for  in  the  Public  Utilities  Act. 

Rule  X.  Railroad  Crossings — Applications  for  Con- 
struction, Alteration  or  Abolition  of. — When  applica- 
tion is  made  for  the  construction,  alteration  or  aboli- 
tion of  crossings  (1)  of  public  roads,  highways  or 
streets  by  railroads,  or  (2)  of  railroads  by  public  roads, 
highways  or  streets,  or  (3)  of  railroads  by  railroads, 
or  (4)  of  railroads  by  street  railroads,  or  (5)  of  street 
railroads  by  railroads,  or  (6)  of  public  roads  or  high- 
ways by  street  railroads,  or  (7)  of  street  railroads  by 
public  roads  or  highways,  under  the  provisions  of  sec- 
tion 43  of  the  Public  Utilities  Act, 

1.  The  petition,  in  addition  to  the  requirements  of 
Rule  IX,  must  state: 

(a)  If  the  application  is  for  a  crossing  at  grade,  such 
facts,  data  and  estimates  of  cost  as  tend  to  show  that 


294  CALIFORNIA   PUBLIC    UTILITIES   ACT. 

it  is  not  reasonable  or  practicable  to  effect  a  separation 
of  grades. 

(b)  Such  safety  device  or  other  protection,  if  any, 
as  the  applicant  may  believe  should  be  installed,  with 
detailed  information  concerning  the  same. 

2.  With  the  petition  shall  be  filed: 

(a)  Map  on  scale  of  not  less  than  200  feet  per  inch 
showing  accurately  the  location  of  all  tracks,  build- 
ings, structures,  property  lines,  streets  and  roads  in 
the  vicinity  of  the  proposed  crossing. 

(b)  Profiles  showing  ground  lines  and  proposed 
grade  lines  of  approaches  on  such  public  roads,  high- 
ways or  streets,  railroads  or  street  railroads  as  may 
be  affected  by  the  proposed  crossing.  In  case  of  a 
contemplated  crossing  of  a  railroad  by  a  railroad,  the 
profile  of  each  railroad  shall  show  the  customary  in- 
formation for  not  less  than  one  (1)  mile  on  each  side 
of  the  proposed  crossing. 

Rule  XI.  Safety  Devices  at  Railroad  Crossings — 
Applications  for. — Whenever  a  railroad  or  street  rail- 
road desires  to  protect  any  crossing  which  it  may  have 
at  grade  with  another  railroad  or  street  railroad,  with 
an  interlocking  or  other  safety  device,  it  may  make 
application  to  the  Commission  for  an  order  approving 
such  device  and  directing  its  construction  and  also 
prescribing  the  division  of  the  cost  of  construction, 
maintenance  and  operation  of  the  same. 

1.  The  petition,  in  addition  to  the  requirements  of 
Rule  IX,  must  state: 

(a)  The  kind  of  device  proposed,  with  a  descrip- 
tion thereof  and  an  estimate  of  the  cost  of  its  construc- 
tion and  operation. 

(b)  The  average  number  of  trains  of  each  class,  and 
of  cars  in  case  of  street  railroads,  operated  daily  over 
the  crossing  by  each  railroad  over  a  period  of  not  less 
than  thirty  (30)  days. 


RULES   OF   PRACTICE   AND   PROCEDURE.  295 

2.  With  the  petition  shall  be  filed: 

(a)  Map  on  scale  of  not  less  than  100  feet  per  inch, 
showing  the  location  of  main  tracks,  the  length  and 
location  of  all  switches,  sidings  and  spur  tracks,  all 
buildings  and  obstructions  to  the  view  in  the  vicinity, 
the  proposed  location  of  tower,  if  any,  and  the  pro- 
posed location  of  all  derails,  switches,  signals  and  de- 
tector bars,  which  are  proposed  to  be  operated  by  the 
device. 

(b)  A  profile  of  each  railroad  or  street  railroad, 
showing  the  customary  information  for  not  less  than 
one  (1)  mile  on  each  side  of  the  crossing,  in  case  of 
railroads,  and  not  less  than  1,000  feet  in  case  of  street 
railroads. 

(c)  Copies  of  such  contracts  or  agreements,  if  any, 
as  may  have  been  entered  into  relating  to  the  construc- 
tion or  protection  of  the  crossing. 

Rule  XII.  New  Construction  or  Extensions— Appli- 
cation for. — When  application  is  made  by  a  street 
railroad  corporation,  gas  corporation,  electrical  cor- 
poration, telephone  corporation  or  water  corporation 
for  a  certificate  that  the  present  or  future  public  con- 
venience or  necessity  requires  or  will  require  a  pro- 
posed new  construction  or  an  extension  in  the  cases 
specified  in  section  50a  of  the  Public  Utilities  Act : 

1.  The  petition,  in  addition  to  the  requirements  of 
Rule  IX,  must  state: 

(a)  The  proposed  location,  route  or  routes,  the 
method  of  construction,  and  the  names  of  all  public 
utility  corporations  or  persons  with  whom  the  proposed 
new  construction  or  extension  is  likely  to  compete. 

(b)  The  facts  showing  that  the  proposed  new  con- 
struction or  extension  is  or  will  be  required  by  public 
convenience  and  necessity. 

(c)  The  manner,  in  detail,  in  which  it  is  proposed 
to  finance  the  proposed  new  construction  or  extension. 


296  CALIFORNIA   PUBLIC    UTILITIES   ACT. 

2.  With  the  petition  shall  be  filed : 

(a)  Map  to  suitable  scale,  showing  the  location  or 
route  of  the  proposed  new  construction  or  extension 
with  its  relation  to  other  public  utilities  with  which 
the  same  is  likely  to  compete,  which  map  shall  contain 
all  data  necessary  for  a  complete  understanding  of  the 
situation. 

(b)  When  the  consent,  franchise  or  permit  of  a 
county,  city  and  county,  municipal  or  other  public  au- 
thority is  necessary,  a  certified  copy  of  the  applica- 
tion therefor  and  of  the  ordinance  or  other  document 
granting  such  consent,  franchise  or  permit.  If  it  is 
impossible  to  file  a  copy  of  the  application,  the  facts 
rendering  such  filing  impossible  shall  be  stated. 

Rule  XIII.  Franchises  and  Permits — Applications 
for  Permission  to  Exercise. — When  application  is  made 
by  a  street  railroad  corporation,  gas  corporation,  elec- 
trical corporation,  telephone  corporation  or  water  cor- 
poration for  a  certificate  that  public  convenience  and 
necessity  require  the  exercise  of  a  right  or  privilege 
under  a  franchise  or  permit,  in  the  cases  specified  in 
section  50b  of  the  Public  Utilities  Act: 

1.  The  petition,  in  addition  to  the  requirements  of 
Rule  IX,  must  state: 

(a)  The  financial  condition  of  the  applicant  as  de- 
fined in  Rule  I,  6. 

(b)  The  facts  showing  the  proceedings  theretofore 
taken  with  reference  to  franchise  or  permit  for  which 
permission  and  approval  are  sought. 

(c)  If  the  application  is  for  permission  to  exercise 
a  right  or  privilege  under  any  franchise  or  permit 
granted  prior  to  March  23, 1912,  but  not  theretofore  ex- 
ercised, or  the  exercise  of  which  has  been  suspended 
for  more  than  one  year,  the  reason  why  such  right  or 
privilege  has  not  been  exercised  or  has  been  suspended. 


RULES  OF  PRACTICE  AND  PROCEDURE.  297 

(d)  The  facts  showing  that  the  exercise  of  such  right 
or  privilege  under  such  franchise  or  permit  is  required 
by  the  public  convenience  and  necessity. 

2.  With  the  petition  shall  be  filed: 

(a)  A  certified  copy  of  the  written  application  to 
the  proper  county,  city  and  county,  municipal  or  other 
public  authority  for  its  consent,  franchise  or  permit 
and  of  the  ordinance  or  other  document,  if  any  has  been 
secured,  granting  such  consent,  franchise  or  permit. 
If  it  is  impossible  to  file  a  copy  of  the  application,  the 
facts  rendering  such  filing  impossible  shall  be  stated. 

(b)  Map  to  suitable  scale,  showing  the  streets, 
avenues  and  all  other  places  and  property  in  or  upon 
or  along  which  it  is  proposed  to  exercise  such  franchise 
or  permit. 

3.  If  a  public  utility  desires  to  exercise  a  right  or 
privilege  under  a  franchise  or  permit  which  it  contem- 
plates securing,  but  which  has  not  as  yet  been  granted 
to  it,  such  public  utility  may  apply  to  the  Commission 
for  an  order  preliminary  to  the  issue  of  the  certificate. 
The  Commission  will,  in  its  discretion,  thereupon  make 
an  order  declaring  that  it  will  thereafter  upon  appli- 
cation issue  the  desired  certificate,  upon  such  terms  and 
conditions  as  it  may  designate,  after  the  public  utility 
has  obtained  the  contemplated  franchise  or  permit. 
Upon  the  presentation  to  the  Commission  of  evidence 
satisfactory  to  it  that  such  franchise  or  permit  has  been 
secured  by  such  public  utility,  the  Commission  will 
thereupon  issue  such  certificate. 

Rule  XIV.  Sale,  Lease,  Assignment,  Mortgage  or 
Other  Disposition  of   Property  —  Application  for. — 

When  application  is  made  by  a  railroad  corporation, 
street  railroad  corporation,  pipe-line  corporation,  gas 
corporation,  electrical  corporation,  telephone  corpora- 
tion, telegraph  corporation  or  water  corporation  for  an 
order  authorizing  the  sale,  lease,  assignment,  mortgage 


298  CALIFORNIA   PUBLIC    UTILITIES   ACT. 

or  other  disposition  of  the  whole  or  any  part  of  its 
railroad,  street  railroad,  line,  plant  or  system,  neces- 
sary or  useful  in  the  performance  of  its  duties  to  the 
public,  or  any  franchise  or  permit  or  any  right  there- 
under, or  by  any  means  whatsoever,  direct  or  indirect, 
the  merger  or  consolidation  of  its  property,  franchises 
or  permits  or  any  part  thereof,  with  any  other  public 
utility,  in  the  cases  specified  in  section  51a  of  the 
Public  Utilities  Act, 

1.  The  petition  must  be  made  by  all  the  parties  to 
the  proposed  transaction  and,  in  addition  to  the  re- 
quirements of  Rule  IX,  must  state: 

(a)  The  financial  condition  of  each  applicant,  as  de- 
fined in  Rule  I,  6. 

(b)  In  detail  the  reasons  upon  the  part  of  each  ap- 
plicant for  entering  into  the  proposed  sale,  lease,  as- 
signment, mortgage  or  other  disposition  of  such  prop- 
erty, franchise  or  permit  and  all  the  facts  warranting 
the  same  and  showing  that  it  is  for  the  benefit  of  the 
public  service. 

2.  With  the  petition  shall  be  filed: 

(a)  A  copy  of  the  proposed  contract,  agreement, 
lease  or  mortgage,  and  if  prior  agreements  have  been 
made  between  the  parties  relating  to  the  same  subject 
matter,  copies  of  such  agreements  must  be  filed  with 
the  petition  or  referred  to  as  already  on  file  with  the 
Commission. 

Rule  XV.  Acquisition  of  Part  or  All  of  Capital 
Stock  of  Another  Utility — Applications  for. — When 
application  is  made  by  any  public  utility  for  authoriza- 
tion to  purchase  or  acquire,  take  or  hold  any  part  of 
the  capital  stock  of  any  other  public  utility,  under  the 
provisions  of  section  51ft  of  the  Public  Utilities  Act, 

1.  The  petition  must  be  made  by  the  public  utility 
proposing  to  purchase,  acquire,  take  or  hold  the  stock, 


RULES   OF   PRACTICE    AND   PROCEDURE.  299 

and  in  addition  to  the  requirements  of  Rule  IX,  must 
state: 

(a)  The  financial  condition  of  the  applicant  and  of 
the  corporation  whose  stock  is  sought  to  be  purchased, 
acquired,  taken  or  held,  as  defined  in  Rule  I,  6. 

(b)  The  reasons  why  the  applicant  desires  to  secure 
the  stock,  and  the  amount  of  the  stock  of  the  public 
utility  affected  already  owned  or  held  by  applicant,  if 
any. 

(c)  Price  proposed  to  be  paid  for  the  stock,  the 
terms  of  payment  with  the  market  value  thereof,  the 
highest  and  lowest  price  during  the  period  of  at  least 
one  year  prior  to  the  application,  and  dividends,  if  any, 
paid  for  a  period  of  five  years. 

Rule  XVI.  Stocks,  Bonds,  Notes  and  Other  Evi- 
dences of  Indebtedness — Applications  for  Order  Au- 
thorizing Issue  of. — When  application  is  made  by  any 
public  utility  for  an  order  authorizing  the  issue  of  stock 
or  stock  certificates,  or  bonds,  notes  or  other  evidences 
of  indebtedness  payable  at  periods  of  not  more  than 
twelve  months  after  the  date  thereof,  under  the  pro- 
visions of  section  52  of  the  Public  Utilities  Act. 

1.  The  petition,  in  addition  to  the  requirements  of 
Rule  IX,  shall  state: 

(a)  The  financial  condition  of  the  applicant  as  de- 
fined in  Rule  I,  6,  and  a  description  of  the  railroad, 
street  railroad,  line,  plant  or  system,  and  equipment  of 
the  applicant,  with  its  original  cost,  where  possible, 
and  its  cost  to  the  applicant,  and  the  amount  of  its 
stock  held  by  other  corporations  and  their  names,  and 
the  kind  of  stock  held  by  each.  If  it  is  impossible  to 
state  the  original  cost,  the  facts  creating  such  impossi- 
bility shall  be  stated. 

(b)  The  amount  and  kind  of  stock,  if  any,  which 
the  public  utility  desires  to  issue,  and,  if  preferred,  the 
nature  and  extent  of  the  preference:  the  amount  of 


300  CALIFORNIA   PUBLIC    UTILITIES   ACT. 

bonds,  notes  or  other  evidences  of  indebtedness,  if  any, 
which  the  public  utility  desires  to  issue,  with  terms, 
rate  of  interest,  and  whether  and  how  to  be  secured. 

(c)  The  use  to  which  the  capital  to  be  secured  by 
the  issue  of  such  stock  or  stock  certificates,  or  bonds, 
notes  or  other  evidences  of  indebtedness  is  to  be  put, 
with  a  definite  statement  of  how  much  is  to  be  used 
severally  for  the  acquisition  of  property,  the  construc- 
tion, completion,  extension  or  improvement  of  facili- 
ties, the  improvement  of  service,  the  maintenance  of 
service,  the  discharge  or  refunding  of  obligations,  and 
the  reimbursement  of  moneys  actually  expended  from 
income  or  from  any  other  moneys  in  the  treasury,  as 
provided  by  section  52  of  the  Public  Utilities  Act. 

(d)  The  property  in  detail  which  is  to  be  acquired, 
with  its  value,  a  detailed  description  of  the  contem- 
plated construction,  completion,  extension  or  improve- 
ment of  facilities  set  forth  in  such  a  manner  that  an 
estimate  of  cost  may  be  made,  a  statement  of  the  char- 
acter of  the  improvement  of  service  proposed,  and  of 
the  reasons  why  the  service  should  be  maintained  from 
its  capital.  If  it  is  proposed  to  discharge  or  refund 
obligations  or  to  reimburse  moneys  actually  expended, 
a  statement  of  the  nature  and  description  of  such  obli- 
gations and  expenditures,  including  the  par  value  of 
the  obligations  and  the  amount  for  which  they  were 
actually  sold  and  the  application  of  the  proceeds  and 
of  the  moneys  expended,  showing  when,  to  whom  and 
for  what  paid  or  applied. 

(e)  Whether  any  contracts  have  been  made  for  the 
acquisition  of  such  property,  or  for  such  construction, 
completion,  extension  or  improvement  of  facilities,  or 
for  the  reimbursement  of  expenditures,  or  for  the  dis- 
position of  any  of  the  stock  or  stock  certificates,  or 
bonds,  notes  or  other  evidences  of  indebtedness  which 
it  is  proposed  to  issue  or  the  proceeds  thereof,  and  if 


RULES  OP  PRACTICE  AND  PROCEDURE.  301 

any  contracts  have  been  made,  copies  thereof  shall 
be  annexed  to  the  petition. 

(f )  Whether  any  of  the  outstanding  stock  or  stock 
certificates  or  bonds,  notes  or  other  evidences  of  in- 
debtedness of  the  public  utility  have  been  issued  or 
used  in  capitalizing  the  right  to  be  a  corporation,  or 
any  franchise  or  permit,  or  the  right  to  own,  operate 
or  enjoy  any  such  franchise  or  permit,  or  any  contract 
for  consolidation  or  lease,  and,  if  so,  the  amount  there- 
of and  the  franchise,  right,  contract  or  lease  so  capital- 
ized. 

(g)  If  the  stock  or  stock  certificates  are  to  be  issued 
by  a  corporation  formed  by  the  merger  or  consolida- 
tion of  two  or  more  corporations,  the  petition  shall 
contain  a  complete  statement  of  the  financial  condition 
of  the  corporations  so  to  be  merged  or  consolidated  of 
the  kind  required  by  subdivision  (a)  hereinbefore  set 
forth,  and  of  their  capital  stock  at  the  par  value 
thereof. 

(h)  Such  other  facts  as  may  be  pertinent  to  the 
application. 

2.  With  the  petition  must  be  filed: 

(a)  A  certificate  or  proposed  certificate  of  proceed- 
ings at  the  meeting  of  directors  and  stockholders  au- 
thorizing the  issue  of  the  desired  securities  with  a 
copy  of  the  mortgage,  if  any. 

(b)  A  certified  list  of  the  certificates  of  stock  already 
outstanding,  with  the  shares  of  stock  represented  by 
each  certificate,  and  the  amounts  paid  to  the  public 
utility  on  each  certificate  as  originally  issued,  either 
in  money,  labor  or  property,  stating  the  amount  of 
each. 

(c)  Maps,  profiles,  plans  and  plats  of  proposed  prop- 
erty and  construction  showing — 

1.  In  the  case  of  railroads,  including  street  railroads, 
all  information  required  by  the  Commission's  General 
Order  No.  14. 


302  CALIFORNIA   PUBLIC    UTILITIES   ACT. 

2.  In  the  case  of  other  public  utilities,  such  certified 
maps  and  plans  as  will  indicate  to  the  Commission  the 
property  to  be  acquired  and  the  location,  extent  and 
character  of  the  proposed  construction. 

(d)  Original  deeds  of  property  or  certified  copies 
thereof  covered  by  proposed  issue,  with  a  detailed 
statement  of  its  actual  cost. 

(e)  Certified  copies  of  all  contracts  for  the  acquisi- 
tion of  proposed  property  and  equipment  and  for  con- 
struction, with  plans  and  specifications  of  such  build- 
ings and  structures  as  may  have  been  designed. 

(f)  Complete  inventory  of  all  property  and  equip- 
ment proposed  to  be  acquired,  prepared  upon  or  in 
accordance  with  blank  forms  and  specifications  pre- 
scribed by  the  Commission,  and  a  statement  of  the  cost 
thereof. 

(g)  A  certified  statement  of  all  cash  bonuses  and 
other  donations  of  property  received,  if  any. 

3.  If  the  application  is  granted,  in  whole  or  in  part, 
the  Commission's  order  will: 

(a)  Prescribe  the  purposes  and  amounts  for  which 
the  issue  authorized  or  the  proceeds  thereof  may  be 
used. 

(b)  Direct  the  applicant  to  report  under  oath  the 
sale  or  sales  of  the  securities  or  obligations  author- 
ized, the  terms  and  conditions  of  sale  and  the  amounts 
realized  therefrom. 

(c)  Require  the  applicant  to  make  a  verified  report 
at  least  every  six  months  showing  in  detail  the  use  and 
application  by  it  of  the  moneys  so  realized  until  such 
moneys  shall  have  been  fully  expended. 

(d)  Specify  such  condition  or  conditions  and  pre- 
scribe such  terms  as  the  Commission  may  deem  reason- 
able and  necessary  to  the  exercise  of  its  permission. 

Rule  XVII.  Increases  in  Charges— Applications  for 
Permission  to  Make.— When  application  is  made  by 


RULES  OF  PRACTICE  AND  PROCEDURE.  303 

any  public  utility  to  raise  any  rate,  fare,  toll,  rental  or 
charge  or  so  to  alter  any  classification,  contract,  prac- 
tice, rule  or  regulation  as  to  result  in  an  increase  in 
any  rate,  fare,  toll,  rental  or  charge,  under  the  pro- 
visions of  section  20  of  article  XII  of  the  Constitution 
of  this  state  or  section  63a  of  the  Public  Utilities 
Act, 

1.  The  petition,  in  addition  to  the  requirements  of 
Rule  IX,  must  state: 

(a)  The  rates,  fares,  tolls,  rentals  or  charges  in 
effect  and  the  increases  which  it  is  desired  to  make. 
These  allegations  may  be  made  by  reference  to  sched- 
ules accompanying  the  petition. 

(b)  The  reasons  for  the  increase,  to  be  stated  in 
full,  so  that  the  Commission  may  clearly  see  the  justi- 
fication therefor. 

2.  With  the  petition  must  be  filed: 

(a)  Such  schedules  or  data,  if  any,  as  the  Commis- 
sion's tariff  circulars  or  other  applicable  orders  may, 
from  time  to  time,  specify. 

3.  If  the  Commission  is  satisfied  with  the  showing 
so  made,  it  may  take  action  on  the  application  ex 
parte;  otherwise  it  may  order  a  hearing  and  give 
notice  thereof  to  such  corporations  or  persons  as  it  may 
consider  necessary  or  desirable. 

Rule  XVIII.  Long  and  Short  Haul:  Thirty  Day 
Notice  Rule — Applications  for  Relief  from. — When 
application  is  made  by  a  common  carrier  for  author- 
ization to  charge  less  for  a  longer  than  a  shorter 
haul  over  the  same  line  or  route  in  the  same  direc- 
tion, under  the  provisions  of  section  21  of  article  X  I  [ 
of  the  Constitution  of  this  state  or  of  section  24<i  of 
the  Public  Utilities  Act,  or  by  a  telegraph  or  tele- 
phone corporation  for  authorization  to  charge  less  for 
a  longer  than  for  a  shorter  distance  service  for  the 
transmission   of   messages   or  conversation   over   the 


304  CALIFORNIA   PUBLIC    UTILITIES   ACT. 

same  line  or  route  in  the  same  direction,  under  the 
provisions  of  section  24b  of  the  Public  Utilities  Act. 
or  by  any  public  utility  to  change  a  rate,  fare,  toll, 
rental,  charge  or  classification,  or  a  rule,  regulation 
or  contract  relating  to  or  affecting  any  rate,  fare,  toll, 
rental,  charge,  classification  or  service,  in  cases  other 
than  those  covered  by  Rule  XVII,  on  less  than  thirty 
days'  notice,  under  the  provisions  of  section  15&  of 
the  Public  Utilities  Act, 

1.  The  petition,  in  addition  to  the  requirements  of 
Rule  IX,  must  state — 

(a)  Such  facts  in  connection  with  the  matter  and 
the  reasons  for  the  desired  relief  as  may  be  specified 
from  time  to  time  in  the  Commission's  tariff  circulars 
or  other  applicable  orders  or  instructions. 

2.  With  the  petition  must  be  filed: 

(a)  Such  schedules  or  data,  if  any,  as  the  Commis- 
sion's tariff  circulars  or  other  applicable  orders  or  in- 
structions may,  from  time  to  time,  specify. 

3.  If  the  Commission  is  satisfied  with  the  showing 
so  made,  it  may  take  action  on  the  application  ex  parte; 
otherwise  it  may  order  a  hearing  and  give  notice 
thereof  to  such  corporations  or  persons  as  it  may  con- 
sider necessary  or  desirable. 

Rule  XIX.  Excessive  or  Discriminatory  Charges — 
Applications  for  Permission  to  Refund. — When  appli- 
cation is  made  by  any  public  utility  to  make  repara- 
tion to  any  shipper  or  consumer  on  account  of  the  rates 
charged  to  said  shipper  or  consumer  being  excessive  or 
discriminatory,  under  the  provisions  of  section  21  of 
article  XII  of  the  Constitution  of  this  state, 

1.  The  petition,  in  addition  to  the  requirements  of 
Rule  IX,  must  state: 

(a)  Such  facts  in  connection  with  the  matter  as 
may  be  specified  from  time  to  time  in  the  Commission 's 


RULES   OF    PRACTICE    AND   PROCEDURE.  305 

tariff  circulars  or  other  applicable  orders  or  instruc- 
tions. 

2.  With  the  petition  shall  be  filed : 

(a)  Such  admissions,  undertakings  or  statements 
on  the  part  of  the  applicant  as  the  Commission's  tariff 
circulars  or  other  applicable  orders  or  instructions 
may,  from  time  to  time,  specify. 

3.  If  the  Commission  is  satisfied  with  the  showing 
so  made,  it  may  take  action  on  the  application  ex 
parte;  otherwise  it  may  order  a  hearing  and  give 
notice  thereof  to  such  corporations  or  persons  as  it  may 
consider  necessary  or  desirable. 

Rule  XX.  Extensions  of  Time  to  File  Required  Re- 
ports, Statements  or  Data,  or  to  Comply  With  Commis- 
sion's Orders — Application  for. — Whenever  a  public 
utility  has  been  required  by  the  Commission  to  file  any 
report,  statement  or  data  or  to  comply  with  any  other 
order  of  the  Commission  within  a  time  specified,  and 
for  any  reason  is  unable  to  do  so  within  the  time 
specified,  it  must,  before  the  expiration  of  such  time, 
file  with  the  Commission  an  application  for  extension 
of  time,  in  which  event — 

1.  The  petition  shall  set  forth  in  detail: 

(a)  What,  if  any,  effort  has  been  made  by  the  appli- 
cant to  prepare  such  report,  statement  or  data  or  to 
comply  with  such  order. 

(b)  Any  facts  tending  to  show  why  the  said  report, 
statement  or  data  cannot  be  filed  or  said  order  com- 
plied with  within  the  time  prescribed. 

(c)  Any  other  facts  which  may  make  an  extension 
of  time  necessary  or  proper. 

(d)  The  further  period  of  time  deemed  necessary  by 
the  applicant  within  which  to  make  and  file  such  re- 
port, statement  or  data  or  to  comply  with  such  order. 

2.  The  Commission  may  direct  a  hearing  upon  said 
petition  and  in  that  event  the  applicant  shall  attend 

20 


306  CALIFORNIA   PUBLIC    UTILITIES   ACT. 

before  the  Commission  or  the  commissioner  holding 
the  hearing  and  produce  such  witnesses  and  documents 
as  the  Commission  may  require. 

Rule  XXI.  Other  Applications.  —  All  applications 
relating  to  matters  over  which  the  Commission  has 
jurisdiction,  and  which  are  not  governed  by  any  of 
the  preceding  Rules,  shall  be  made  by  petition,  setting 
forth  the  name  and  address  of  the  applicant  and  the 
matter  with  reference  to  which  the  Commission's  order, 
authorization  or  permission  is  desired.  Thereupon  the 
procedure  shall  be  such  as  the  Commission  may  pre- 
scribe. 

Rule  XXII.  Deviations  from  Rules — Authoriza- 
tions for. — In  special  cases,  for  good  cause  shown,  the 
Commission  may  permit  deviations  from  these  rules 
in  so  far  as  it  may  find  compliance  therewith  to  be 
impossible  or  impracticable. 

Rule  XXIII.  Amendment  of  Rules. — The  rules  may 
be  amended  at  any  regular  session  of  the  Commission. 

Rule  XXIV.  Forms  Prescribed  for  Use.— The  fol- 
lowing forms  may  be  used  in  cases  to  which  they  are 
applicable,  with  such  modifications  as  the  circum- 
stances may  render  necessary: 


FORMS.  307 

FORMS  PRESCRIBED. 

1.  Formal  Complaint. 

2.  Formal  Application. 

3.  Order  to  Satisfy  or  Answer  a  Complaint. 

4.  Answer. 

5.  Notice  of  Hearing  on  Complaint. 

6.  Published  Notice  of  Hearing  on  Application. 

No.  1. 

Form  of  Formal  Complaint. 

Before  the  Railroad  Commission  of  the  State  of 
California. 

[Insert  name  of  complainant], 

Complainant, 

vs. 

[Insert  name  of  defendant], 

Defendant. 


No. . 

[To  be  inserted  by  the 
secretary  of  the 
Commission.] 


COMPLAINT. 

The  complaint  of  [here  insert  full  name  of  complain- 
ant] respectfully  shows: 

(1)  That  [here  state  occupation  and  postoffice  ad- 
dress of  complainant]. 

(2)  That  [here  insert  full  name,  occupation  and 
postoffice  address  of  defendant]. 

(3)  That  [here  insert  fully,  clearly  and  with  reason- 
able certainty  the  act  or  thing  done  or  omitted  to  be 
done  which  complainant  claims  constitutes  a  cause  of 
complaint,  with  reference,  where  practicable,  to  the 
law,  order  or  rule,  and  the  section  or  sections  thereof, 
of  which  a  violation  is  claimed]. 

Wherefore,  complainant  asks  [here  state  specifically 
the  relief  to  which  complainant  believes  he  is  entitled]. 


308  CALIFORNIA   PUBLIC    UTILITIES   ACT. 

Dated  at ,  California,  this day  of 

191 . 


[Complainant's  name.] 

[Name  and  address  of 
attorney,  if  any.] 

State  of  California, 

County  of ,  ss. 

[Insert  name  of  complainant  or  other  person  quali- 
fied to  verify],  being  first  duly  sworn,  deposes  and 
says:  That  he  is  the  complainant  in  the  action  entitled 
as  above;  that  he  has  read  the  foregoing  complaint 
and  knows  the  contents  thereof;  and  that  the  same  is 
true  of  his  own  knowledge,  except  as  to  matters 
which  are  therein  stated  on  information  or  belief,  and 
that  as  to  those  matters  he  believes  it  to  be  true. 

Subscribed  and  sworn  to  before  me  this  day 

of ,  191 . 

■    ■   '_     i 

Notary  Public  in  and  for  the  County of , 

State  of  California. 

No.  2. 

Form  of  Formal  Application. 

Before  the  Railroad  Commission  of  the  State  of 
California. 

In  the  Matter  of  the  Application  of^ 
[here   insert   name    of    appli- 
cant], for  [here  insert  desired 


No. . 

[To  be  inserted  by  the 


order,    authorization,    permis-  y-       secretary    of    the 


sion  or  certificate,  thus :  ' '  order 
authorizing  issue  of  stocks 
and  bonds"]. 


Commission.] 


FORMS.  309 

APPLICATION. 

The  petition  of  [here  insert  name  of  applicant]  re- 
spectfully shows: 

1.  That  [here  insert  principal  place  of  business  or 
postofiice  address,  character  of  business  and  territorial 
extent  thereof,  of  applicant]. 

2.  That  [here  insert  fully,  clearly  and  with  reason- 
able certainty,  the  facts  required  by  these  Rules  and 
any  additional  facts  which  the  applicant  desire-  to 
state  to  show  the  relief  which  he  desires  and  the  facts 
on  which  it  is  based]. 

Wherefore,  petitioner  asks  that  the  Railroad  Com- 
mission of  the  State  of  California  [here  state  specifi- 
cally the  action  which  the  applicant  desires  the  Rail- 
road Commission  to  take]. 

Dated  at ,  California,  this day  of , 

191 . 


[Petitioner's  name.] 
[Verification] 


[Name  and  address  of 
attorney,  if  any.] 


No.  3. 

Form  of  Order  to  Satisfy  or  Answer  a  Complaint. 

Before  the  Railroad  Commission  of  the  State  of 
California. 

[Insert  name  of  complainant],         ^ 

Complainant,  i  No-        • 

I    [To  be  inserted  by  the 
r  secretary     of     the 

rT  .  <>  j    «       j    _jn  Commission.] 

[Insert  name  of  defendant  J,  J 

Defendant.  d 


310  CALIFORNIA   PUBLIC    UTILITIES   ACT. 

ORDER  TO  SATISFY  OR  ANSWER. 
To  [here  insert  name  and  address  of  defendant]. 

You  are  hereby  notified  that  a  complaint  has  been 
filed  in  the  action  entitled  as  above  against  you  as  de- 
fendant, and  you  are  hereby  ordered  to  satisfy  the 
matters  therein  complained  of  or  to  answer  said  com- 
plaint in  writing  within  ten  (10)  days  from  the  ser- 
vice upon  you  of  this  order  and  the  copy  of  said  com- 
plaint which  is  hereunto  attached. 

By  order  of  the  Railroad  Commission. 

Dated  at  San  Francisco,  California,  this day  of 

,  191 . 


Secretary  Railroad  Commission 
of  the  State  of  California. 
[Railroad  Commission  Seal.] 

No.  4. 

Form  of  Answer  to  Formal  Complaint. 

Before  the  Railroad  Commission  of  the  State  of 
California. 

[Insert  name  of  complainant], 

Complainant, 
vs. 

[Insert  name  of  defendant], 

Defendant.  , 

ANSWER. 

The  above-named  defendant,  for  answer  to  the  com- 
plaint in  this  proceeding,  respectfully  states : 

1.  That  [here  follow  specific  denials  of  such  material 
allegations  of  the  complaint  as  are  controverted  by 
the  defendant  and  also  a  statement  of  any  new  matter 
constituting  a  defense.  Continue  numbering  each  suc- 
ceeding paragraph]. 


No. . 

[To  be  inserted  by  the 
>■  secretary     of     the 

Commission.] 


FORMS.  311 

Wherefore,  the  defendant  prays  that  the  complaint 
be  dismissed  [or  other  appropriate  prayer]. 


[Name  of  defendant.] 
[Verification.] 

No.  5. 

Form  of  Notice  of  Rearing  on  Complaint. 

Before  the  Railroad    Commission  of   the  State  of 
California. 

[Insert  name  of  complainant], 

Complainant, 

vs. 

[Insert  name  of  defendant], 

Defendant. 


Xo. . 

[To  be  inserted  by  the 
secretary  of  the 
Commission.] 


NOTICE  OF  HEARING. 
To  [here  insert  names  of  all  parties]. 

You  and  each  of  you  are  hereby  notified  that  the 
Railroad  Commission  of  the  State  of  California  has 
set  the  above-entitled  case  for  hearing  before  Com- 
missioner    on  [day  of  week]  the  [day  of  month] 

day  of    [name  of    month],  191 ,  at  o'clock 

—  M.,  in  the  office  of    the  Commission,  Room  , 

Commercial  Building,  San  Francisco,  California,  al 
which  time  and  place  you  will  be  given  an  opportunity 
to  be  heard. 

By  order  of  the  Railroad  Commission. 

Dated  at  San  Francisco,  California,  this  d   ." 

of ,  191 . 


Secretary  Railroad  Conm 

of  the  State  of  California. 
[Railroad  Commission  Seal.] 


312  CALIFORNIA   PUBLIC    UTILITIES   ACT. 

No.  6. 

Form  of  Published  Notice  of  Hearing  on  Application. 

Before  the  Railroad   Commission  of   the  State  of 
California. 


In  the  Matter  of  the  Application  of > 
[here  insert    name  of    appli- 
cant] for  [here  insert  desired 
order,    authorization,    permis- 
sion or  certificate]. 


No. . 

[To  be  inserted  by  the 
>.  secretary     of     the 

Commission.] 


NOTICE  OF  HEARING. 

Notice  is  hereby  given  that  the  application  of  [name 
of  applicant  in  full]  for  the  [approval,  determination, 
consent,  permission,  certificate  or  authorization]  of  the 
Railroad  Commission  of  the  State  of  California  to 
[here  state  nature  of  consent  asked]  will  be  heard  be- 
fore Commissioner at  the  office  of  the  Commis- 
sion in  the  Commercial  Building,  San  Francisco,  Cali- 
fornia, on  [day  of  week],  the  [day  of  month]  day  of 
[name  of  month],  191 ,  at  o'clock  —  M. 

By  order  of  the  Railroad  Commission. 

Dated  at  San  Francisco,  California,  this  day 

of ,  191 . 


Secretary  Railroad  Commission 
of  the  State  of  California. 


INDEX. 


[References   are  to  Pages.] 
ACCIDENTS. 

investigation  of,  orders  and  recommendations,  192. 

orders,  etc.,  filed  with  Commission  not  admissible  as  evidence,  192. 

reports  to  be  filed  with  Commission,  192. 

ACCOUNTING. 

forms  in  addition  to  those  of  Commerce  Commission,  196. 
uniform  system  of: 

to  be  prescribed  by  Railroad  Commission,  195. 

unlawful  to  keep  records,  etc.,  otherwise  than  as  prescribed,  196. 

ACCOUNTS. 

copies  of,  154. 
uniform  system  of,  196. 

ACTIONS. 

pending,  this  act  shall  not  affect,  263. 

ACTS  NOT  LEGISLATIVE  IN  CHARACTER, 
may  be  delegated  by  legislature,  71. 

ADDITIONAL  OFFICERS  AND  EMPLOYEES, 
of  Commission,  127. 

ADDITIONS   TO  PLANT. 

powers  of  Railroad  Commission  to  order,  179,  181. 

AGREEMENTS, 
copies  of,  154. 

ALABAMA. 

constitutional  provisions  of,  7. 

distribution  of  powers.    See  Distribution  or  Powers  of  Govern- 
ment. 
Railroad  Commission  of,  77. 

ANNUAL  REPORT. 

of  public  utility  to  Railroad  Commission,  155. 
of  Railroad  Commission,  131,  222. 

APPEAL  TO  THE  SUPREME  COURT. 

how  taken,  255. 

iu  summary  proceedings  commenced  by  the  Commission,  255. 

.(313) 


314  INDEX. 

[References  are  to  Pag«s.] 
APPLIANCES. 

power  to  regulate,  165. 
right  to  charge  fee,  194. 
testing  of,  194. 

APPLIANCES  OF  PUBLIC  UTILITIES. 

for  measurement,  testing  of.     See  Service  of  Public  Utilities. 

APPOINTMENT. 

of  commissioners,  124.     See  Commissioners;  Railroad  Commission. 
of  joint  cost  of  making  improvements,  etc.,  181. 

ARTICLES  OF  INCORPORATION. 

to  be  filed  with  Railroad  Commission,  199. 

ASSIGNMENT. 

of  stock  without  authorization  void,  202. 

ASSISTANT  SECRETARY, 
powers  and  duties  of,  126. 

ATTORNEY  GENERAL. 

to  assist  in  enforcement  of  laws  by  Railroad  Commission,  251. 

ATTORNEY  TO  COMMISSION, 
appointment  of,  125. 
duties  of,  126. 

AUTHORIZATION  OF  BOND,  ETC.,  ISSUE,     See  Bonds;  Stock. 

BILLING. 

false,  prohibited,  149. 

BLANKS. 

filling  out,  reason  for  failure  to  fill  to  be  given,  154. 

BONDS. 

amount  to  be  determined  by  Commission,  205. 

application  of  proceeds  to  be  made  as  directed,  20G. 

approval  of  issue,  205. 

authorizing  issue  greater  or  less  than  authorized  stock,  205. 

disposition  of  proceeds  to  be  accounted  for,  207. 

felony  to  apply  proceeds  otherwise  than  as  directed,  208. 

felony  to  issue  without  authorization,  208. 

hearings  to  determine  authorizing,  205. 

issue  of  after  act  takes  effect,  without  authorization,  void,  210. 

issue  of  without  authorization  void,  207. 

penalty  for  issuing  without  authorization,  208. 

power  of  Commission  on  authorizing,  204. 

power  of  Commission  to  enforce  conditions,  210. 

power  to  issue,  control  of,  203. 

purpose  for  which  may  be  issued,  204. 


INDEX.  315 

[References  are  to  Paget.] 

BONDS  (Continued). 

state  not  obligated  by  authorization  of,  209. 
void,  for  improper  issuance,  210. 

BOOKS,  PAPERS  AND  DOCUMENTS. 
copies  of,  154. 

court  may  compel  production  before  Commission,  218. 
inspection  of,  222. 

authority  under  seal  of  Commission  required  when,  223. 
kept  out  of  state,  Commission  may  order  production  of,  223. 
written  record  of  testimony  to  be  filed,  223. 

BURDEN  INTERSTATE  COMMERCE, 
state  cannot,  94. 

CALIFORNIA. 

constitutional  provisions  of,  9. 
provisions  for  Railroad  Commission,  16. 
Public  Utilities  Act,  1,  109. 

CALIFORNIA   PUBLIC   UTILITIES  ACT. 
as  to  generally,  1. 
body  of  act,  109-266. 
constitutionality  of,  58. 
functions  and  powers  of  Commission,  60. 

CANVASSERS. 

subject  to  regulations  by  interstate  commerce  law,  101. 

CAPITAL  STOCK. 

purchase  by  another  utility  company,  202. 

CARRIER. 

cannot  change  schedule  of  rates,  140. 
prohibited  from  false  billing,  149. 

prohibited  from  giving  privileges.     See  Free  Transportation;  Re- 
bates. 

CARS. 

power  of  Commission  to  order  running,  etc.,  183. 

CHANGE  OR  MODIFICATION  OF  RATES.     See  Rates. 
on  long  and  short  haul  services,  150. 

CHANGES. 

power  of  Railroad  Commission  to  order,  179. 

CHANGES    IX   SCHEDULES. 

Commission   ma]    allow   without   notice,  139. 
notice  of  and  how  given,   13S,  139. 


316  INDEX. 

[References  are  to  Pages.] 
CHARGES. 

by  public  utilities,  133. 

by  public  utilities  other  than  common  carriers,  137,  138.. 

change  by  commissioners,  157-177. 

change  in,  notice  of,  139. 

excessive  or  discriminating,  250. 

interstate,  178. 

joint.     See  Kates. 

limitation  of,  137. 

regulation  of,  229. 

sliding  scale  of,  147. 

to  be  just  and  reasonable,  133. 

CHARTER  RIGHT  OF  CORPORATION, 
not  affected  by  Public  Utilities  Act,  68. 

CITY. 

act  shall  not  affect  power  of  control  of,  262. 

CIVIL  EXECUTIVE  OFFICERS  OF  COMMISSION, 
salaries  of,  130. 

CLAIM  FOR  DAMAGES, 
false,  149. 

CLASSIFICATION. 

changes  by  commissioners,  165. 

change  in,  notice  of,  138. 

interstate,  139. 

joint,  176. 

of  public  utilities  other  than  common  carriers,  137. 

regulation  of,  229-231. 

COLLATERAL  ACTIONS, 
orders  conclusive,  231. 

COMMERCE  COMMISSION. 

application  of  Railroad  Commission  to,  to  fix  interstate  rates,  178. 

COMMISSION.     See  Railroad  Commission. 
annual  report  of,  131. 
definition  of,  112. 
expenses  of,  130. 

COMMISSION  ACTS. 

Alabama,  77. 
Illinois,  77. 
Iowa,  78. 
Kansas,  80. 
Minnesota,  80. 
Mississippi,  81. 


INDEX.  317 

[References  are  to  Pages.] 
COMMISSION  ACTS   (Continued). 
North  Carolina,  82. 
Oklahoma,  83. 
Oregon,  84. 
Texas,  87. 
Wisconsin,  89. 

COMMISSIONER 

definition  of,  112. 

COMMISSIONERS,   RAILROAD.     See   Railroad   Commission. 
additional  officers  and  employees  of,  127. 
annual  report  of,  130. 
appointment  of,   124. 

assistant  secretary  to,  powers  and  duties  of,  126. 
attorney  to,  appointment  of,  125. 
duties  of  attorney  to,  126. 
duties  of  secretary  to,  126. 

eligibility  of  commissioners,  appointees  and  employees,  127. 
expenses  of,  130. 

free  transportation  for  commissioners  and  employees,  131. 
general  office  of: 

in  San  Francisco,  128. 

open  when,  128. 

session  of  Commission  at,  128. 

session  to  be  public,  128. 
majority  to  act,  129. 

oath  of  commissioners,  appointees,  etc.,  127. 
official  seal  of,  judicial  notice  of,  128. 
one  may  investigate,  129. 
other  offices  of  Commission,  128. 
president  of,  election,  125. 

qualification  of  commissioners,  appointees  and  employees,  127. 
quorum  of,  129. 

removal  of  commissioners,  grounds  for,  125. 
salaries : 

of  civil  executive  officers  of,  130. 

of  commissioners,  130. 

of  officers  and  employees  of,  130. 

of  other  persons  and  employees  of,  130. 
secretary  to,  appointment  and  term  of  office,  126. 
supplies  and  equipment  of,  129. 
term  of  office  of,  125. 
vacancy  in : 

filling  of,  125. 

not  to  impair  powers  of,  129. 

COMMON  CARRIERS.     See  Carriers;  Railroads. 
definition  of,  118. 


318  INDEX. 

[References  are  to  Pages.] 
COMPLAINTS. 

by  Commission  of  its  own  motion,  223. 
copy  to  be  served  on  corporation,  225. 

service  made  upon  whom,  226. 
fixing  hearings.     See  Hearings  Before  Commission. 
joinder  of  grounds  of  complaint,  225. 
misjoinder  of  parties  immaterial,  225. 

rule  applied  on  review,  225. 
no  dismissal  for  want  of  direct  damages,  225. 
right  of  public  utility  to  make,  228. 
signature  to  complaints,  224. 
to  be  entered  by  Commission  when,  224. 

COMPLIANCE.     See  Orders. 

of  suit  to  recover  penalty,  261. 

COMPROMISE. 

of  action  to  recover  penalties,  261. 

CONNECTING  LINES.     See  Railroads. 

duty  to  receive  and  haul  cars  as  billed,  148. 

CONSTITUTIONALITY  OF  PUBLIC  UTILITIES  ACT. 
as  to  generally,  57. 
provisions  as  to,  264. 

CONSTITUTIONAL  PROVISIONS. 

introductory,  6. 

distribution  of  powers,  6. 

provisions  providing  for  a  Commission,  6. 
want  of  as  to  delegation  of  power  as  to  Railroad  Commission,  effect, 

70. 

CONSTRUCTION. 

of  plant,  197,  198. 

to  be  given  section  regarding  orders  or  certificate  from  Commission, 
202. 

CONTEMPT  OF  COURT. 

failure  to  obey  order  to  appear  before  Commission  is  a,  218. 

proceedings  on,  261. 

punishment  for,  261. 

remedy  provided  on  is  cumulative,  218,  261. 

CONTRACTS. 

copies  of,  154. 

joint,  139. 

regulation  of,  2-29,  230. 

CONTROL  OF  RAILROADS.     See  Railroads. 

COPIES  OF  MAPS,  ETC. 

to  be  delivered  to  Commission,  154. 


INDEX.  319 

[References  »re  to   Page*.] 
CORPORATION. 

charter  rights  of  not  affected  by  Public  Utilities  Act,  68. 
copy  of  complaint  to  be  served  on,  225. 

upon  whom  to  be  made,  22-6. 
definition  of,  113. 

foreign  engaged  in  interstate  commerce,  95. 
railroad  engaged  in  interstate  commerce,  96. 
telegraph  companies  as  interstate  carriers,   105. 

COST. 

joint,  of  making  improvements,  fixing  of,  181. 
proportion  of,  to  be  fixed  by  Railroad  Commission.  182. 

COUNTY. 

act  shall  not  affect  power  to  control,  262. 

COURT  PROCEEDINGS.     See  Appeal  to  Supreme  Coubt;  Review. 
references,  247. 

CROSSING, 
grade,  191. 
point  of,  to  be  determined  by  Commission,  191. 

DAMAGES. 

complaint  not  dismissed  for  want  of  direct,  225. 

effect  of  act,  252. 

from  false  billing,  prohibited,  149. 

jurisdiction  of  action,  252. 

penalties  provided  for  cumulative,  252. 

public  utilities  liable  for,  251. 

recovery  by  individuals  not  to  affect  right  of  state  to  penalties,  252. 

who  may  bring  action  for,  252. 

DATE. 

when  act  is  effective,  266. 

DECISIONS. 

Commission  may  change,  230. 
conclusive  on  collateral  proceedings,  231. 

DEFAULT. 

procedure  on,  in  summary  proceedings  by  Commission,  254. 

DEFINITIONS. 

"commission,"   112. 
"commissioner,"   112. 
"common  carrier,"  118. 
"corporation,"  113. 
"electric  plant,"  120. 
"electrical  corporation,"  120. 


320  INDEX. 

[References  are  to  Pages. J 

DEFINITIONS   (Continued), 
"express  corporation,"  118. 
"gas  corporation,"  119. 
"gas  plant,"  119. 
"person,"  113. 
"pipe-line,"  119. 
"pipe-line  corporation,"  119. 
"public  utilities,"  122. 
"railroad,"  116. 
"railroad  corporation,"  117. 
"street  railroad,"  114. 
"street  railroad  corporation,"  116. 
"telegraph  corporation,"  121. 
"telegraph  line,"  121. 
"telephone  corporation,"  121. 
"telephone  line,"  120. 
"transportation  of  persons,"  114. 
"transportation  of  property,"  114. 
"vessel,"  122. 
"warehouseman,"  122. 
"water  corporation,"  122. 
"water  system,"  121. 
"wharfinger,"  122. 

DELEGATION  OF  LEGISLATIVE   POWERS. 
as  to  generally,  69. 

authority  to  delegate  as  to  act  not  legislative,  71. 
delegation  as  to  details  and  enforcement,  72. 
discretionary  powers  cannot  be  delegated,  76. 
quasi- judicial  tribunal,  76. 
want  of  constitutional  provisions,  70. 

DEMURRAGE  CHARGES, 
must  be  uniform,  193. 

DEPOSITIONS. 

as  to  when  may  be  taken,  218. 

compelling  attendance  with  books,  papers,  etc.,  218. 

DEPRECIATION. 

accounts  of  how  to  be  kept,  197. 

public  utility  to  conform  depreciation  to  rates  as  fixed,  197. 

rates  of  to  be  fixed  by  Railroad  Commission,  197. 

DETAILS  AND  ENFORCEMENT  OF  LAWS, 
may  be  delegated  by  legislature,  72. 

DISCONTINUANCE. 

of  action  to  recover  penalty,  261. 


INDEX.  321 

[References  are  to  Pages.] 
DISCRETIONARY  POWERS. 

cannot  be  delegated  by  legislature,  76. 

DISCRIMINATION. 

between  utilities  inter  se  prohibited,  147. 

none  by  public  utilities,  146. 

of  charges,  250. 

prevention  of  by  Commission,  160. 

DISCRIMINATION  BETWEEN  UTILITIES  INTER  SE. 
prohibited,  147. 

DISCRIMINATORY  CHARGES. 

complaints  concerning,  and  petition  in  action,  limitation,  250. 
failure  to  comply  with  orders  of  reparation,  action,  250. 
prevention  of,  by  Commission,  160. 
remedy  provided  is  cumulative,  250. 
reparation,  250. 

DISTRIBUTION. 

power  to  regulate,  152. 

DISTRIBUTION  OF  POWERS  OF  GOVERNMENT, 
as  to  generally,  89. 
in  Alabama,  7. 
in  California,  9. 
in  Georgia,  21. 
in  Illinois,  22. 
in  Iowa,  22. 
in  Kansas,  23. 
in  Louisiana,  23. 
in  Minnesota,  29. 
in  Mississippi,  29. 
in  New  York,  31. 
in  North  Carolina,  31. 
in  Oklahoma,  3L 
in  Oregon,  49. 
in  Texas,  50. 
in  Washington,  53. 
in  Wisconsin,  56. 

DISTRICT  ATTORNEY. 

to  assist  in  enforcement  of  laws  by  Railroad  Commission,  251. 

DIVIDEND. 

on  profit  from  economics,  146. 

DIVISION  OF  RATES.     See  Rates. 

DOCUMENTS. 

official  copy,  220. 
21 


322  INDEX. 

[Reference*  are  to  Pages.] 

DUTIES. 

of  public  utilities.     See  Public  Utilities. 

ECONOMICS. 

profit  from,  dividend  from,  146. 

ELECTION. 

of  president  of  Commission,  125. 

ELECTRICAL   CORPORATION, 
definition  of,  120. 
right  to  fix  standard,  etc.,   194. 

ELECTRICAL  PLANT. 
definition  of,  120. 

ELIGIBILITY. 

of  appointees,   127. 
of  commissioners,   127. 
of  employees,   127. 

EMPLOYEES  OF  COMMISSION, 
additional,  127. 

divulging  information.     See  MlSDEMEANOB. 
employment  of,  127. 
salaries  of,  130. 

EMPLOYEES  OF  PUBLIC  UTILITIES. 

health  of,  190. 

penalty  for  misrepresentation,  208. 

safety  of,  190. 

ENFORCEMENT  OF  LAWS. 

action  in  name  of  people,  250. 
attorney  general  to  aid  in,  251. 
district  attorneys  to  aid  in,  251. 
Railroad  Commission  charged  with,  250. 

EPIDEMICS. 

exceptions  as  to  rates  in  case  of,  144. 

EQUIPMENT. 

of  Commission,  129. 
of  public  utilities,  133. 

power  to  regulate,  158. 

to  be  fixed  by  Railroad  Commission,  178. 

EVIDENCE.  .    .         -..„,„    «,ft 

certified  copy  of  papers  filed  with  Commission  admissible  in,  220. 
of  franchises  to  be  filed  with  Railroad  Commission,  200. 


INDEX.  323 

[References  are  to  Pages.] 

EXCESSIVE  CHARGES. 

complaint  concerning  and  petition  in  action,  limitation,  250. 

failure  to  comply  with  order  of  reparation,  l:50. 

of  fares,  rates,  tolls,  etc.,  250. 

order  of  reparation,  250. 

remedy  provided  is  cumulative,  250. 

EXCHANGE  OF  SERVICES, 
contract  for,  144. 

EXPENSES. 

of  Commission,  130. 

EXPRESS  COMPANIES. 

free  and  reduced  rates  by,  143. 
rules  and  regulations  of,  193 

EXPRESS  CORPORATION. 

definition  of,  118. 

EXTENSIONS  TO  PLANT, 
power  to  order,  181. 

FACILITIES. 

joint,  liability  of  useT,  189. 

joint,  use  of,  189. 

of  public  utilities,  134. 

power  to  regulate,  178. 

to  be  fixed  by  Railroad  Commission,  178. 

FALSE  BILLING. 

by  carrier  or  shipper  prohibited,  149. 

FALSE  CLAIM  FOR  DAMAGES. 

from  false  billing,  prohibited,  149. 

FARES. 

as  published  to  be  charged,  140. 

change  by   commissioners,   158-165. 

change  in,  notice  of,  138,  139. 

five  cents   within  corporate  limits,   153. 

free,  who  can  obtain,  141. 

interstate,  179. 

joint,  139. 

reduced,  who  can  obtain,  143. 

regulation  of,  229. 

United  States  government,  165. 

FEES. 

and  milenge  of  witnesses.     See  Witnesses. 
for  testing  appliances  of  public  utilities,  194. 


324  INDEX. 

[References  are  to  Pages. J 
FEES  (Continued). 

to  be  charged  and  collected  by  Commission: 
as  to  generally,  221. 
no  fee  for  annual  report,  222. 
no  fee  for  copies  of  paper,  222. 
no  fee  on  bond  issues,  etc.,  222. 
to  be  paid  into  state  treasury  once  a  week,  222. 

FELONY. 

to  misapply  proceeds  of  bond  issue.     See  Bonds. 

FILING  JOINT  TARIFF.     See  Rates. 
as  to,  139. 

FILING   TARIFF   SCHEDULE   WITH   COMMISSION.     See  Rates; 

SCH ED  TILES. 

as  to  generally,  135,  137. 

FOREIGN  CORPORATIONS. 

engaged   in   interstate   commerce,   95. 
excluded,  152. 

FOREIGN  PUBLIC  UTILITIES, 
excluded,  152. 

FORM  OF  SCHEDULE  OF  RATES, 
change  of  by  Commission,  138. 

FORM  OF  TARIFF  SCHEDULE. 

to  be  prescribed  by  Commission,  137. 

FORMS. 

interstate  commerce  to  be  used,  196. 
to  be  filled,  154. 

FRANCHISES, 
copies  of,  154. 

lapsed,  not  validated  by  permission  or  approval,  201. 
not  exercised,  199. 

suspended  for  more  than  one  year,  199. 
transfer  of,  order  authorizing,  201. 

FRANCHISES  TO  BE  SECURED. 

form  of  order  of  Railroad  Commission,  200. 

FRANKS  BY  TELEGRAPH,  ETC.,  COMPANIES. 
as  to,  143. 

FREE  AND  REDUCED  RATES. 

prior  contract  for  not  affected,  143. 

FREE  PASS.    See  Free  Transportation. 


INDEX.  325 

[References  are  to  Pages. J 

FREE  RATES  BY  EXPRESS  COMPANIES, 
as  to,  143. 

FREE  TRANSPORTATION, 
of  commissioners,   131. 
of  employees  of  Commission,  131. 
to  he  prohibited,  141,  170. 
exceptions,  141. 

FUNCTIONS  AND  POWERS  OF  RAILROAD  COMMISSION, 
as  to  generally,  60. 

GAS  CORPORATION, 
definition  of,  119. 
right  to  fix  standard,  etc.,  194. 

GAS  PLANT. 

definition  of,  119. 

GENERAL  OFFICE  OF  COMMISSION, 
in  San  Francisco,  128. 
open  when,  128. 

otheT  offices  of  Commission,  128. 
session  at  to  be  public,  128. 
session  of  Commission  at,  128. 

GEORGIA. 

constitutional  provisions,  21. 
corporation  control,  21. 

GOVERNMENT. 

distribution  of  powers  of.    See  Distribution  op  Powebs  op  Gov- 
ernment. 

GOVERNMENTAL  POLICY, 
in  other  countries,  4. 

GRADE  CROSSINGS. 

abolishing  established,  191. 
determining  manner  of,  191. 
prohibition  of  in  future,  191. 

GREATER  CHARGE, 
prohibited,  144. 

GROUNDS  FOR  REMOVAL   OF  COMMISSIONERS, 
as  to  generally,  125. 


328  INDEX. 

[References  are  to  Pages.] 

HAUL. 

long  and  short,  150. 

HAWKERS  AND  PEDDLERS. 

not  subjects  of  regulation  by  interstate  commerce  law,  104. 

HEALTH  AND  SAFETY.     See  Safety  Devices. 

HEARINGS  BEFORE  COMMISSION, 
copy  of  order  on  to  be  served,  227. 
decision  on  to  be  filed,  227. 
fees  and  mileage.     See  Witnesses,  etc.,  this  title. 

by  whom  paid,  215. 
fixing  of,  ten  days'  notice,  226. 
full  and  complete  record  of,  227. 
further  from  time  to  time: 

findings  on  considered  with  original  finding,  249. 

shall  be  on  written  notice,  249. 
informalities  not  to  prejudice,  214. 
notice  of,  226. 
order  on  to  be  filed,  227. 
order  on  to  be  operative  in  twenty  days,  exceptions,  227. 

where  order  cannot  be  complied  with  in  twenty  days,  227. 
process  on: 

and  enforcing   attendance  of  witnesses  at,  226. 

compensation  for  serving,  215. 

extends  to  all  parts  of  state,  215. 

power  to  issue,  214. 

service  of,  215. 
review  of  order  on.     See  Review. 
rules  on,  214. 
rules  of  evidence  on,  214. 
testimony  taken  on,  227. 
to  fix  valuation.     See  Physical  Valuation. 
witnesses,  documents  and  papers: 

as  to  generally,  215. 

court  may  compel  attendance  with  books  and  papers,  216. 

deposition  may  be  taken  when,  218. 

fees  demanded  not  paid,  witness  need  not  attend,  216. 

fees  may  be  collected  by  suit,  216. 

may  demand  fees  and  mileage,  exceptions,  216. 

no  person  excused  from  testifying,  219. 

order   of   court   that   witness   appear,   service   of   and   effect   of 
failure  to  appear,  217,  218. 

person  testifying  not  to  be  prosecuted,  219. 

person  testifying  not  exempt  from  prosecution  for  perjury,  219. 

public  utilities  not  given  immunity,  220. 

refusal  to  attend,  report  to  court,  217. 


INDEX.  327 

[References  are  to  Pages. 1 

HEARINGS  BEFORE   COMMISSION    (Continued). 

subpoenaed  by  Commission,  payment  of  fees  and  mileage,  215. 
traveling  on  free  transportation  no  mileage  to  be  received,  216. 
who  may  introduce  evidence  at,  226. 

ILLINOIS. 

constitutional  provisions  of,  22. 

distribution  of  powers.     See  Distribution  or  Powers  or  Govern- 
ment. 
Railroad  and  Warehouse  Commission  Act  of,  2,  77. 

ILLINOIS  RAILROAD  AND  WAREHOUSE  COMMISSION  ACT. 
history  and  effect  of,  2,  77. 

IMPROVEMENT  OF  SERVICE, 
bonds  for,  204. 

IMPROVEMENTS  BY  TWO  OR  MORE  PUBLIC  UTILITIES, 
right  to  apportion  cost  of,  182. 

IMPROVEMENTS  TO  TLANT. 

power  of  Railroad  Commission  to  order,  179. 

INCORPORATION. 

filing  articles  of,  154. 

INCREASE  OF  RATES.     See  Rates. 
as  to  generally,  229. 
extension  of  period  of  suspension,  229. 
hearing  on  individual  rates,  229. 
not  to  go  into  effect  until  ordered,  229. 
notice  on,  139. 

on  hearing  rate  to  be  fixed  by  Commission,  230. 
suspension  not  to  be  beyond  twenty  days,  229. 
to  go  into  effect  in  thirty  days  from  filing,  230. 

INDEBTEDNESS. 

evidences  of,  203,   204. 

INDUSTRIAL  TRACKS. 

interchange  switching  to,  188. 

INFORMATION  AND  DETAILS, 
furnished  to  be  kept  private,  154. 
misdemeanor  to  divulge,  155. 
to  be  kept  private,  154. 
request  for  to  be  complied  with,  154. 
to  be  furnished  and  tabulated,  153. 

INJUNCTION. 

appeal  to  supreme  court,  how  taken,  255. 


328  INDEX. 

[References  are  to  Pages.] 

INJUNCTION   (Continued). 

attorney  of  Commission  to  proceed  in  superior  court,  254 

copy  of  petition  to  be  served,  254. 

court  to  fix  hearing,  254. 

final  judgment,  on  hearing,  255. 

joinder  of  parties,  discretion  of  court,  255. 

proceeding  in  case  of  default,  254. 

to  prevent  violation  of  orders,  etc.,  of  Eailroad  Commission,  253. 

INJUEY. 

regulation  of  liability  for  by  Railroad  Commission,  163. 

INSPECTION. 

of  accounts,  etc.,  222. 

right  to  enter  for  purpose  of,  194. 

INSTRUMENTALITIES, 
of  public  utilities,  133. 

INTERSTATE  COMMERCE, 
act  shall  not  apply  to,  265. 
foreign  corporations,  95. 
foreign  corporations  engaged  in,  95. 
loss  of  character  as,  106. 

not  to  be  interfered  with  by  Railroad  Commission,  164,  170. 
original  packages,  107. 
railroads,  96. 
railroads  engaged  in,  96. 
state  cannot  burden,  94. 
subjects  of  interstate  commerce  regulations,  98. 

canvassers  and  solicitors,  101. 

carriage  of  express,  101. 

hawkers  and  peddlers,  104. 

intoxicating  liquors,  101. 

itinerant  venders,  104. 

natural  gas,  103. 

original  packages,  103,  107. 

pipe-lines,  103. 

sale  by  sample,  103. 
telegraph  companies,  105. 
waters,  105. 

INTERSTATE  COMMERCE  COMMISSION  ACT. 
as  to  generally,  3. 

INTERSTATE  RATES.     See  Rates. 

INTERSTATE  TRAFFIC, 
filing  schedule  of,  145. 


INDEX.  329 

[References  are  to  Pages] 

INTEBURBAN  RAILROADS.    See  Public  Utilities;  Railroads. 
fares  on,  153. 
transfers  on,  153. 

INTOXICATING  LIQUORS, 
original  packages,  103,  107. 
subject  to  regulations  by  interstate  commerce  law,  101. 

INVENTORY  OF  PROPERTY. 

to  be  delivered  to  the  Commission,  154. 

IOWA. 

constitutional  provisions  of,  22. 
Railroad  Commission  Act  of,  78. 

IRRIGATION. 

regulation  of  by  Railroad  Commission,  174. 

ITINERANT  VENDERS. 

not  subject  to  regulation  by  interstate  commerce  law,  104. 

JOINT  FACILITIES. 

liability  for  damages  for  use  of,  189. 
use  of,  189. 

JOINT  RATES.     See  Rates. 

duty  of  carrier  to  make,  148. 

power  of  Commission  not  affected,  148. 

JOINT  TARIFF. 

filing  by  one  party  sufficient,  139. 
names  of  parties  to  be  set  out,  139. 

JUDICIAL  NOTICE. 

of  official  seal  of  Commission,  128. 

JURISDICTION. 

of  supreme  court  on  writ  of  review,  242. 
extent  of  review,  236. 

JUST  AND  REASONABLE, 
charge  to  be,  133. 

KANSAS. 

constitutional  provisions  of,  23. 

distribution  of  powers.     See  Distribution  OF  Powees  OF  Govern- 
ment. 
Railroad  Commission  Act  of,  80. 

LAWS. 

enforcement  of,  251. 

LEASE. 

of  property,  franchises,  etc.,  without  order  void,  20L 


330  INDEX. 

[References  are  to  Pages. J 

LEGISLATIVE  POWERS, 
as  to  generally,  63. 
delegation  of.     See  Delegation  of  Powers. 

LESS.  CHARGE, 
prohibited,  144. 

exceptions  as  to,  145. 

LESS  RATE. 

by  means  of  false  billing  prohibited,  149. 

LIENS. 

approval  of,  203. 

LONG  AND  SHORT  HAUL  SERVICE, 
as  to  generally,  150. 

change  or  modification  of  rates  for  by  Commission,  150,  151. 
compensation  for,  150. 
telephone  and  telegraph  companies  governed  by,  151. 

LOSS  OF  CHARACTER  AS  INTERSTATE  COMMERCE, 
as  to  generally,  106. 
of  original  packages,  107. 

LOUISIANA. 

constitutional  provisions  of,  23. 
corporation  control,  23. 

distribution  of  powers.     See  Distribution  of  Powers  of  Govern- 
ment. 
provisions  for  Railroad  Commission,  24. 

MAJORITY  OF  COMMISSION, 
may  act,  129. 
to  constitute  quorum,  129. 

MANUFACTURE,  METHOD  OF. 
power  to  regulate,  179. 

MAPS. 

copies  of  to  be  delivered  to  Commission,  154. 

MEETINGS  OF  COMMISSION, 
when  and  where  held,  128. 

MESSAGES. 

long  and  short  distance,  150,  151. 

MINNESOTA. 

constitutional  provisions  of,  29. 

distribution  of  powers.     See  Distribution  of  Powers  of  Govern- 
ment. 
Railroad  and  Warehouse  Commission  Act  of,  80. 


INDEX.  331 

[References  are  to  Pages.] 

MISDEMEANOR. 

for  officer,  etc.,  of  corporation  to  violate  order  of  Railroad  Commis- 
sion, 258. 
to  divulge  information  furnished,  155. 

MISSISSIPPI. 

constitutional  provisions  of,  29. 
corporation  control,  30. 

distribution  of  powers.     See  Distribution  op  Powers  or  Govern- 
ment. 
Railroad  Commission  Act  of,  81. 

MONEYS. 

disposition  of  on  stay  granted  on  review,  246. 
not  claimed: 

advertisement,  246. 

final  disposition  of,  246. 

MUNICIPAL  RETENTION  OF  SURRENDER  OF  POWERS, 
as  to  generally,  262,  267. 
election  to  continue  power,  262. 
subsequent  surrender  of  power,  262. 

NATURAL  GAS. 

subject  to  regulation  by  interstate  commerce  law,  103. 

NEW  CONSTRUCTION. 

certificates  from  Railroad  Commission,  197. 

certificates  not  required  when,  198. 

certified  copies  of  articles  to  be  filed,  199. 

evidence  of  franchises  to  be  filed,  200. 

franchises  and  privileges  require  certificate  of  Commission,  199. 

franchises,  etc.,  yet  to  be  secured,  form  of  certificate,  200. 

interference  with  other  public  utilities,  198. 

invalid  rights  or  privileges  not  validated,  199. 

power  to  issue  or  review  certificate,  200. 

right  to  proceed  under  former  franchises  and  privileges,  when,  199. 

NEW  STRUCTURES. 

joint  cost  of  making  improvements,  apportionment  of  by  Commis- 
sion, 181. 
power  of  Railroad  Commission  to  fix  site  of,  180. 

NEW  YORK. 

constitutional  provisions  of,  31. 

distribution  of  powers.     See  Distribution  or  Powers  or  Govern- 
ment. 

NORTH  CAROLINA. 

constitutional  provisions  of,  31. 


332  INDEX. 

[References  are  to  Pages.] 

NORTH  CAROLINA   (Continued). 

distribution  of  powers.    See  Distribution  of  Powers  or  Govern- 
ment. 
Railroad  Commission  Act  of,  82. 

NOTES. 

approval  of,  203,  206. 

may  be  issued  without  authorization  when,  206. 

penalty  for  improper  issuance,  208. 

NOTICE. 

in  tariff  schedule,  contents  of,  136. 

annual  report  of  public  utilities  to  be  made  under,  155. 

OATH  OF  OFFICE. 

of  appointees  of  Commission,  127. 
of  commissioners,  127. 
of  employees,  127. 

OFFICE. 

location  of,  128. 

OFFICERS  OF  COMMISSION, 
additional,  127. 
salaries  of,  130. 

OFFICIAL  SEAL  OF  COMMISSION. 
judicial  notice  of,  128. 

OKLAHOMA. 

constitutional  provisions  of,  31. 
Corporation  Commission  Act,  83. 

corporation  control — Railroad  and  public  service  corporation,  32. 
distribution  of  powers.     See  Distribution  of  Powers  of  Govern- 
ment. 
provisions  for  Corporation  Commission,  33. 

ONE  COMMISSIONER, 
may  investigate,  129. 

ORDERS  OF  RAILROAD  COMMISSION.    See  Railroad  Commission. 
certificate  of  note,  etc.,  recording,  221. 
Commission  may  change,  230. 
compliance  with,  155. 
conclusive  on  collateral  proceedings,  231. 
may  be  recorded  by  county  recorder  when,  220. 

when  recorded  impart  notice,  220. 
right  to  rescind,  230. 

to  be  complied  with  by  public  utilities,  155. 
to  be  in  writing  and  entered  of  record,  220. 


INDEX.  333 

[References  are  to  Pages] 
OREGON. 

constitutional  provisions  of,  49. 

distribution  of  powers.     See  Distribution  of  Powers  or  Govern- 
ment. 
Railroad  Commission  Act  of,  84. 

ORIGINAL  PACKAGES. 

loss  of  character  as  interstate  commerce,  when,  107. 
subject  to  regulation  by,  103. 

OTHER  OFFICES  OF  COMMISSION, 
as  to  generally,   128. 

OTHER  PERSONS  AND  EMPLOYEES  OF  COMMISSION, 
salaries  of,  130. 

PARTIES. 

joinder  of  in  summary  proceedings  by  Commission,  255. 

PASSENGERS. 

safety  of,  190. 
PASSES.    See  Franks,  etc.;  Free  Transportation. 

by  telegraph,  etc.,  companies,  143. 

to  be  prohibited,  170. 

PENALTIES. 

actions  to  recover.     See  Suit  to  Recover,  infra,  this  title. 

construction,  act  or  omission  of  officer,  258. 

cumulative,  252. 

each  day's  continuance  a  separate  offense,  257. 

for  applying  proceeds  of  bond  issue  otherwise  than  as  directed,  208. 

for  failure  to  obey  or  observe  orders,  258. 

by  outside  corporations,  259. 

by  private  person,  259. 
for  issuing  bonds  without  authorization,  200. 
for  issuing  stock  without  authorization,  208. 
for  violation  of  orders  by  employees  of  public  utilities,  258. 
for  violation  by  officers,  etc.,  misdemeanor,  258. 
for  violation  by  public  utilities,  256,  259. 

by  corporation  other  than  public  utility,  259. 

by  persons  other  than  officer,  259. 
regulation  affixing,  171. 
euit  to  recover: 

brought  and  prosecuted  by  whom,  260. 

compliance  or  discontinuance  of  action,  260. 

disposition  of  and  cost  recovered,  260. 

evidence  on,  260. 

jurisdiction,  260. 

procedure  and  evidence,  260. 

what  may  be  recovered  on,  260. 


334  INDEX. 

[References  are  to  Pages.] 
PEBJUBY. 

person  testifying  falsely  before  Commission  subject  to  prosecution 
for,  219. 

PEBSON. 

definition  of,  113. 

PESTILENCES. 

exceptions  as  to  rates  in  case  of,  144. 

PETITION. 

in  action  for  excessive  or  discriminatory  charges,  251. 

PHYSICAL  CONNECTIONS.    See  Telephone  and  Telegraph  Lines. 

PHYSICAL  VALUATION. 

complaints  concerning  and  petition  in  action,  limitation,  250. 

conditions  of,  247. 

failure  to  comply  with  order  of  reparation,  action,  250. 

evidence  on,  248. 

excessive  or  discriminatory  charges,  reparation,  250. 

findings  at  supplemental  hearings  considered  with  original  findings,. 

249. 
findings  of  Commission  admissible  as  evidence,  248. 
findings  of  facts  subject  to  review,  248. 
finding  of  fact  to  be  in  writing  and  to  be  filed,  248. 
further  hearings  from  time  to  time,  249. 
further  hearing  shall  be  on  written  notice,  249. 
hearings  for,  247. 

notice  of,  thirty  days',  to  be  given,  247. 

of  future  hearings,  to  be  in  writing,  249. 
procedure  for  making,  247-250. 
remedy  provided  is  cumulative,  250. 
scope  of  inquiry  and  evidence,  248. 
thirty  days'  notice  in  writing  to  be  given,  247. 
who  entitled  to  appear  at  and  put  in  evidence,  248. 

PIPE-LINE. 

definition  of,  119. 

subject  to  regulation  by  interstate  commerce  law,  103. 

PIPE-LINE  COBPOBATION. 
definition  of,   119. 

PLANT. 

construction  of,  197. 
depreciation,  197. 

PLENAEY  POWEE  OF  COMMISSION, 
as  to  generally,  21. 
limitation  of,  21. 


INDEX  335 

[References  are  to  Pages] 
POSTING  TARIFF  SCHEDULE.     See  Rates;   Tariff  Schedule. 

as  to  generally,  136. 
POWERS  OF  RAILROAD  COMMISSION.     See  Railroad  Commission. 
to  supervise  and  regulate  every  public  utility,  158. 

PRACTICE. 

rules  of.     See  Rules  op  Practice  and  Procedure. 

PRACTICES. 

power  to  regulate,  178,  179. 
regulation  of,  229. 

PREFERENCE. 

to  be  given  by  the  courts  to  actions  by  commissioners,  247. 

PREFERENCES. 

none  by  public  utilities,  146. 
power  of  Commission  as  to,  146. 
prohibited,  146. 
unjust  difference  of  rates,  146. 

PRESIDENT  OF  COMMISSION, 
election  of,  125. 

PRINTING. 

of  tariff  schedule,   136. 

PRIVATE  INFORMATION  FURNISHED. 

disclosing,  a  misdemeanor.     See  Misdemeanor. 
to  be  kept  secret,  154. 

PRIVILEGES. 

prohibited,  140. 

PROCEEDINGS. 

of  commissioners,  214  et  seq. 
summary,  253. 

PROCEDURE. 

before  commissioners,  214  et  seq. 

for  making  physical  valuation.     See  Physical  Valuation. 

rules  of.     See  Rules  op  Practice  and  Procedure. 

PROCESS.     See  Hearings  Before  Commission. 
compensation  for  service  of,  215. 
extends  to   all  parts  of  9tate,  215. 
for  hearings,  and  enforcing  attendance,  227. 
power  to  issue,  214. 

service  of.     See  Hearings  Before  Commission. 
witnesses.     See  Hearings,  etc.;   Witnesses. 

PROFILES. 

copies  of  to  be  delivered,  154. 


336  INDEX. 

[References  are  to  Pages.l 

PROFIT  FROM  ECONOMICS, 
dividend  from,  146. 

PROFIT  SHARING, 
scale  of  charge,  147. 

PROPERTY. 

inventory  of  to  be  delivered,  154. 
transfer  of,  order  authorizing,  201. 

PUBLIC. 

safety  of,  190. 

PUBLIC  INSPECTION. 
•    of  tariff  schedule,  135. 

PUBLIC  UTILITIES, 
annual  report  of,  155. 

to  be  made  under  oath,  155. 
change  in  schedules  by  and  notice  of,  138,  139. 
charges  by  to  be  just  and  reasonable,  133. 
compliance  by  with  order  of  Commission,  155. 
connecting  lines,  duty  to  receive  and  haul  cars  as  billed,  148. 
construction,  act  or  omission  of  officer,  258. 
definition  of,  123. 

discrimination  by  between  utilities  inter  se  prohibited,  147. 
duties  of,  generally,  132-155. 

duty  of  telegraph  and  telephone  lines  to  receive  and  transmit,  148. 
duty  to  make  joint  rates  and  power  of  Commission  to  change,  148. 
false  billing,  etc. : 

false  claim  for  damages,  etc.,  by,  prohibited,  149. 

less  rates  by  means  of,  prohibited,  149. 

prohibited,   149. 
foreign  public  utilities  excluded,  152. 
increased  rate  of,  notice  of,  139. 
interstate  traffic,  filing  schedule  of,  145. 
joint  tariff,  etc.,  names  of  parties  and  filing,  139. 
liable  for  damages.     See  Damages. 
long  and  short  hauls  and  services: 

as  to  generally,  150. 

change  or  modification  of  rates  by  Commission,  151. 
not  given  immunity,  220. 

notice  to  of  hearings.    See  Hearings  Before  Commission. 
may  complain,  228. 
penalty  for  violation  of  orders  by,  256,  259. 

by  officer,  258. 

each  day's  continuance  a  separate  offense,  257. 

Buit  to  recover  jurisdiction,  and  by  whom  brought,  260. 

what  may  be  recovered  on  suit  for,  260. 


INDEX.  337 

[References  are  to  Pa?o>.] 

PUBLIC  UTILITIES   (Continued), 
preferences  by : 

powers  of  Commission  as  to,  146. 

prohibited,  146. 

unreasonable  difference  of  rates  prohibited,  146. 
proceeds   from  economics,  etc.,   146. 
profit  sharing,  scale  of  charge,  147. 
rules   and   regulations   of   to   be  just,   135. 
schedule  of  rates: 

carrier  shall  not  change,  140. 

contract  for  exchange  of  services  not  affected,  144. 

exceptions  as  to  United  States,  epidemics,  etc.,   144. 

exceptions   may   be    established    by   Commission,    145. 

filing   and    publishing    of,    140. 

free   and    reduced   rates   to   express   companies,    143. 

free   passes   and   reductions   prohibited,   exceptions,    141. 

may    be    revoked    by    Commission,    147. 

passes  and   franks  by  telegraph  and  telephone  companies,   143. 

prior   contract   for   free   or   reduced   rates   not   affected,   143, 

rebate   and   privileges  prohibited,   140. 
services    and    facilities   to   be   furnished   by,    134. 
sliding   scale   of   charges,   schedule   of,    146. 
street  and  interurban  railroads: 

detailed    copies   of    maps,   etc.,    154, 

fares    on,    153. 

filing  of  blank,  reason  for  failure  to  be  given,  154. 

information   and    details   to    be    furnished,    153. 

misdemeanor   for   divulging,   155. 

tabulation   of,   153. 

to  be  kept  private,   154. 

transfers   on,    153. 
switch  and  spur  connections,   151,   152. 
tariff  schedule  of.      See  Tariff  Schedule. 
unjust  charges  by  unlawful,   134. 

PUBLIC   UTILITIES  ACT. 

action  may  be  brought  under,  264. 
appropriation   by,  266. 
cause   of   action   shall   not   abate,   264. 
constitutionality   of,   provisions   as   to,   264. 
construction   of,   262-266. 

construed    a    continuance    of    former    acts,    264. 
decisions    of    Commission   continue    in    force,    264. 
declaration    of    intent    of    legislature,    265. 
definitions,     112-123. 

duties  of  uimLt  California  act,   132-155. 
effect   of   on  existing   power   of   any  city,   etc.,   262. 
22  - 


338  INDEX. 

[References  are  to  Pages.] 

PUBLIC  UTILITIES  ACT   (Continued). 

electing  to  continue  power,  262. 

subsequent  surrender  of  power  how  made,  262. 

vote   to   be   taken   on,   262. 
effect   of   on   pending   action   and   proceedings,   263. 
interstate    commerce    not    affected    by,    265. 
orders    of    Commission   continue   in   force,    264. 
powers   and   duties   of   Railroad   Commission   under,   156-210. 
procedure   before   Commission    and   courts,   211-261. 
provisions  as  to  Railroad  Commission,  124-131. 
ratification  of   acts   and  proceedings   of   Commission,  263. 
repeal   by,    266. 
saving  clause  of,  263,  264. 
time   of    going   into   effect,   266. 
titles  of  act: 

long  title,  109. 

short  title,  110. 

QUALIFICATIONS, 
of    appointees,    127. 
of    commissioners,    127. 
of  employees,  127. 

QUARANTINE   REGULATION. 

state    may    establish,    108. 

QUASI-JUDICIAL    TRIBUNAL. 

may  be  created  by  delegation  of  powers  of  legislature,  76. 

QUORUM. 

what  constitutes,  of  Commission,  129. 


RAILROAD. 

definition  of,   116. 

RAILROAD   COMMISSION. 

abrogation,  change  or  modification,  of  orders  of  on  rehearing,  233. 

additional  cars,  may  require  to  be  run,   183. 

additional  officers  and  employees  of  Commission,  127. 

amount    of    bonds    Commission    may    authorize    to    be    issued,    205. 

annual    report    of    Commission,    131. 

appointment   of    commissioners,    124. 

approval    of   not   to    validate    void    or   lapsed    franchises,    201. 

articles  of   corporation,   certified,   to   be   filed   with,   199. 

assignment  of  stock  not  to   be   made  without  authority  of,  202. 

assistant  secretary   to   Commission,   duties  and  powers  of,   126. 

attorney    to    Commission,    appointment    of,    125. 


INDEX.  339 

[References  are  to   Pages.] 
RAILROAD  COMMISSION   (Continued). 

authority  of   necessary   to   purchase  and   hold   stock  of   other  utili- 
ties,  202. 
capitalization    of    franchises    not    to    be   authorized    by,    206. 
certificate  from,  new  construction: 
as    to   generally,    197. 

certified   copies  of  articles  to   be   filed   with,   199. 
franchises  and  privileges,   199. 
interference    with    other    public    utilities,    198. 
invalid   right   or  privilege  not   validated,   199. 
not    required    when,    198. 
change   or  modification   of  rates   by,   on   hearing,    150. 
charge  to   be  fixed   by,   165. 
commissioner,    appointment    of,    124. 
complaints: 

copy   of  complaint   to   be   served   on   corporation,   225. 
fixing    hearing,    ten    days'    notice,    226. 
hearings  by.     See  Hearings    Before  Commission. 
joinder  of  grounds    and  misjoinder  of  parties  immaterial,  225. 
may  be  made  by,  223. 

no    dismissal    for    want   of    direct    damages,    225. 
pubtic   utilities    may    complain    to,    228. 
service  of  made  how  and  when,  226. 
to  be  entered  by   Commission  when,   signature,   224. 
depreciation    account,    rules    for    keeping    to    be    made    by,    197. 
division   of   primary  expense   for  switches  and   connections,    187. 
duties  of  attorney  to  Commission,   126. 
duties    of    secretary    to    Commission,    126. 
equipment    to    be   regulated   by,    178. 
existing    contract    for   transportation    not   affected,    170. 
expenses    of    Commission,    130. 
facilities   to   be    regulated   by,    178. 
fees: 

none   for  annual   report,  222. 
none   for   copies   of   papers,   etc.,   222. 
none   on   bond   issue,   etc.,   222. 
to  be   charged  and   collected   by,   221. 
to  be  paid  into  state  treasury  once  a  week,   222. 
free  transportation  of  commissioners  and  employees,  131. 
functions  and  powers  of,  60. 
general    office    of    Commission: 
at    San    Francisco,    128. 
open    when,    128. 
session  of   Commission   at,   128. 
general   powers   of.     See   infra,   Powers,    this   title, 
as    to   generally,    158. 


340  INDEX. 

[References  are  to  Pages.J 

RAILROAD  COMMISSION   (Continued). 

not  to  be  interfered  with  by  interstate  commerce,  164. 

to   correct    abuses,    159. 

to    make    and    enforce    regulations,    159. 

to  prevent  discrimination,  160. 

to  regulate  and  control  railroads,  162. 

to   regulate  liability   for  injuries,    163. 
general  provisions  as  to,  124-131. 
grade  crossings  to  be  regulated  by,  191. 
hearings  for  physical  valuation.     See  Physical  Valuation. 
hearing  of  to  determine  whether  to  authorize  bond  issue,  205. 
information  and  details  to  be  furnished  to  by  public  utilities,  153. 
inspection  of  books,  papers  and  documents  by,  222. 
investigating  and  fixing  rates,  176. 
irrigation,  control  of,  174. 

issue  of  stocks,  bonds,  etc.,  within  control  of,  203. 
majority  to  act,  one  may  investigate,  129. 
may  change  orders  and  decisions,  230. 

may  direct  the  application  of  proceeds  of  bonds  issued,  etc.,  206. 
may  establish  quarantine  regulation,  108. 
may  prescribe  fees  for  testing  electrical,  gas  and  water  appliances, 

194. 
may  require  production  of  books  and  records  kept  out  of  state,  223. 
moneys  not  claimed,  how  disposed  of  by,  246. 
oath  of  office  of  commissioners,  appointees,  etc.,  127. 
order  and  recommendation  of,  192. 
order  of  necessary  to  sale,  lease,  etc.,  201. 

orders  of: 

as  to  generally,  175. 

certificate  of  note  of,  recording,  221. 

may  be  recorded  by  county  recorder  when,  220. 

impart  notice,  220. 
to  be  complied  with  by  public  utilities,  155. 
to  be  in  writing  and  entered  of  record,  220. 

orders  and  decisions: 

conclusive  in  collateral  proceedings,  231. 

continuing  in  force,  264. 
other  offices  of  Commission,  128. 

passes  and  free  transportation  to  be  prohibited,  170. 
penalties  for  violation  of  orders  of.     See  Penalties. 
permission  of  not  to  validate  void  or  lapsed  franchises,  201. 
physical  valuation.     See  Physical  Valuation. 
plenary  powers  of,  21. 

powers  of: 

as  to  generally,  60. 

on  authorizing  bonds,  204. 


INDEX.  341 

[References  are  to  Pages.] 
EAILROAD  COMMISSION    (Continued). 

to  allow  change  of  rates  without  notice,  139. 

to  approve  and  fix  schedule  of  rates,  138. 

to  authorize  or  prevent  transfer  or  sale  of  property,  franchises, 

etc.,  201. 
to  change  form  of  schedule  of  rates,  138. 
to  determine  and  prescribe  manner  of  grade  crossings,  191. 
to  determine  question  of  fact  relative  to  rates,  14o. 
to  enter  premises,  etc.,  194. 
to  establish  rates  and  fix  division  of,  177. 
to  fix  division  of  rates,  177. 
to  fix  expenses  and  division  of  rates,  189. 
to  fix  site  of  new  structure,  180. 

making  it  joint  cost,  apportionment  of  coBt,  181. 
fixing  proportion  of  cost  by,  182. 
to  impose  conditions,  210. 
to  investigate  interstate  rates,   178. 
to  issue  process,  214. 

to  issue  or  review  certificate  of  corporation,  200. 
to  order: 

additions,  179. 

change  in  time  schedule,  etc.,  183. 
changes,  179. 
improvements,   179. 
safety  devices,  190. 
to  provide  rules  to  expedite  traffic.  192. 
to  regulate  express  and  telegraph  companies,  193. 
to  require  physical  connections  of  telephone  and  telegraph  lines, 

188. 
to  revoke  schedule  of  rates  and  fix  other  charges,  147. 
president  of  Commission,  election  of,  125. 
qualification  and  eligibility  of  commissioners,  appointees,  employees 

127. 
quorum  of  Commission,  129. 

quarantine  regulations  may  be  established  by,  108. 
rates  to  be  fixed  by: 

as  to  generally,  165. 
as  to  fixing  generally,  166. 
as  fixed  to  be  prima  farie  reasonable,  169. 
basis  of  computation  of,  168. 
charter  right,  167. 
in  force  how  long,  169. 
method  of  procedure,  167. 

opportunity  of  public  utilities  to  be  heard,  169. 
unreasonable  rules,  169. 
reasonable  regulation  of  interstate  commerce  by,  170, 
regulate  use  of  joint  facilities,  189. 


342  INDEX. 

[References  are  to  Pages.] 

RAILROAD  COMMISSION   (Continued), 
regulation  affixing  penalties,  170. 
rehearings  by.     See  Rehearings. 
removal  of  commissioner,  grounds  for,  125. 
review  of  order  or  decision  of.     See  Review. 
right  to  change  fares,  etc.,  138. 
rules  and  regulations  to  be  prescribed  by,  179. 

salaries : 

of  civil  executive  officers  of,  130. 

of  commissioners,  130. 

of  officers  and  employees,  130. 

of  other  persons  and  employees,  130. 
Beal  of  Commission,  judicial  notice  of,  128. 

secretary  to  Commission,  appointment  and  term  of  office  of,  126. 
spur  connections  may  be  required  by,  187. 
service  to  be  fixed  by,  178. 
sessions  of  Commission  to  be  public,  128. 
stay  of  order  of  by  supreme  court,  time  of  notice,  243. 
summary   proceedings  by   for   violation   of   orders,   etc.     See   Sum- 
mary Proceedings. 
supplemental   order,  effecting  of    as  affecting  rates,   177. 
supplies  and  equipment  of  Commission,  129. 
suspension  of  order  of,  none  pending  review,  243. 
switch  and  spur  connections  may  be  required  by,  187. 
term  of  office  of  commissioner,  125. 
time  schedule,  may  order  changes  in,  183. 
to  fix  and  determine  amount  of  bond  issue  of  corporation,  205. 

track  connections: 

expenses  of  connections,  187. 

in  cities  and  towns,  186. 

may  regulate,  184. 
uniform  system  of  accounting  to  be  prescribed  by,  195. 
union  depot,  may  be  required  to  be  built,  183. 

vacancy  in  Commission: 

filling  of,  125. 

not  to  impair  powers,  129. 
valuation  of  property  by,  195. 
water  rates  to  be  fixed  by,  171. 
who  to  file  tariff  of  schedule  with,  137. 

RAILROAD  CORPORATION, 
definition  of,  117. 

RAILROADS. 

control  of  by  Corporation  Commission,  162. 
engaged  in  interstate  commerce,  96. 


INDEX.  343 

[References  are  to  Papea  ] 
EATE3. 

division  of  through  rates,  177. 

supplemental  order,  177. 
fixing  divisions  of,  177. 

fixing  of: 

basis  of  computation,  168. 

charter  right  as  affecting,  167. 

in  force  how  long,  169. 

methods  of  procedure,  167. 

opportunity  of  corporation  to  be  heard,  169, 

power  of  Railroad  Commission,  166. 

prima  facie  reasonable,  169. 

unreasonable  rates,  169. 
increase  of.     See  Increase  of  Rates. 
interstate,  application  to  Commerce  Commission,  178. 
joint  and  through,  of  common   carriers,   176. 
joint,  of  telephone  and  telegraph  lines,  189. 
limitation  of,  137. 
single,  investigating  and  fixing,  176. 
through  rates  of  common  carrier,  176. 
to  be  changed  or  fixed  by  Railroad  Commission,  165. 
transportation  in  originating  car,  177. 

REASONABLE . 

charges  to  be,  133. 

REBATES. 

from  false  billing,  prohibited,  149. 
prohibited,  140,  144. 

RECORDS. 

copies  of,  154. 

of  hearings,  227. 

of  testimony  on  hearings,  227. 

REDUCED  RATES.     See  Rates. 
by  express  companies,  143. 

REGULATIONS  OF  PUBLIC  UTILITIES.    See  Public  Utilities. 
as  to  generally,  135. 

REHEARLNGS. 

abrogation  of  order  on,  233. 

affirmance  of  decisions  implied  when.  232. 

application  for  not  to  excuse  noncompliance,  232. 

application  granted  without  suspension  of  ordrr,  232. 

application  to  set    forth  grounds,  other  grounds  excluded,  231. 

change  of  order  on,  233. 

decision  on,  232. 


344  INDEX. 

[References  are  to  Pages.] 

REHEARINGS  (Continued). 

decisions  for  extension  of  date,  232. 

granted  when,  231. 

made  ten  days  or  more  before  order  effective,  232. 

modification  of  order  on,  233. 

necessary  to  action  on  review,  231. 

orders  after,  effect  on  original  order,  233. 

who  may  apply  for,  231. 

REMOVAL  OF  COMMISSIONERS, 
grounds  for,  125. 

RENTAL. 

limitation  of,  137. 

REVIEW. 

action  of,  stipulating  question,  228. 

application  for  writ  of,  when  to  be  made,  233. 

disposition  of  money  on  final  decision,  246. 

extent  of  review,  236. 

findings  and  conclusions  of  Commission  final  on,  233. 

hearings  of  on  return  day,  236. 

judgment  of  supreme  court,  24L 

jurisdiction  on,  242. 

mandamus  to  Commission  on,  243. 

moneys  not  claimed: 

advertisement,  246. 

final  disposition  of,  246. 
new  evidence  not  allowed,  236. 

no  suspension  of  order  of  Commission  pending,  243. 
of  certificate  granted  by  Commission  to  construct,  200. 
of  order  of  Commission  at  hearing,  228. 
provisions  of  Code  of  Civil  Procedure  to  govern,  241. 
right  to  appear  at,  240. 
rule  as  to  misjoinder  or  nonjoinder  of  parties  immaterial,  applies  on, 

225. 
Btay  by  supreme  court,  notice  of,  243. 
stay  effective  when  bond  filed,  when,  244. 

stay  granted: 

additional  security  may  be  required,  245. 

money  to  be  paid  into  court  and  impounded,  244. 

procedure  on,  245. 
to  be  heard  upon  the  record,  236. 
transcript  on,  228. 

writ  of: 

direction  of,  235. 
returnable  when,  235. 


index.  345 

[References  are  to  Paget.) 
REVOKING  SCALE, 
by  Commission,  147. 

RULES  AND  REGULATIONS. 

of  Commissions.    Se«  Railroad  Commission. 
of  public  utilities,  135. 

RULES  OF  PRACTICE  AND  PROCEDURE. 

as  to  generally,  281. 

acquisition  of  part  or  all  of  capital  stock  of  another  utility,  appli- 
cation for,  298. 

amendment  to  rule,  306. 

application,  general  methods  applicable  to  all,  292. 

assignment  of  property,  application  for,  297. 

bonds,  application   for  authorization  of  issue  of.  299. 

capital  stock  of  another  utility,  application  for,  298. 

complaint,   contents  and  proceedings  upon   hearing,   285. 

compliance  with  order  of  Commission,  application  for  extension  of 
time  for,  305. 

data,  application  for  extension  of  time  to  file,  305. 

deviations  from  rules,  authorization  for,  306. 

discriminatory  charges,  application  for  permission  to  refund,  304. 

disposition  of  property,  application  for,  297. 

division,  281. 

evidence   of  indebtedness,  application  for  authorization  of,  299. 

excessive  charges,  application  for  permission  to  refund,  304. 

extension  of  time  to  file  required  reports,  statements  or  data,  etc., 
application  for,  305. 

form  of  proceedings,  general  methods  applicable  to,  284, 

forms  prescribed  for  use: 

as  to  generally,  306. 

answer  to  formal  complaint,  310. 

formal  application,  308. 

formal  complaint,  307. 

notice  of  hearing  on  complaint,  311. 

order  to  satisfy  or  answer  a  complaint,  309. 

public  notice  of  hearing  on  complaint,  312. 
franchises  and  permits,  application  for  permission  to  exercise,  296. 
hearings  and  rehearings  in  all  formal  proceedings,  289. 
increases  in  charges,  application  for  permission  to  make,  302. 
lease  of  property,  application  for,  297. 
long  and  short  hauls  rule.     See  Rates. 

application  for  relief  from  thirty  Jays"  notice  rule,  303. 
miscellaneous  applications,  306. 
mortgage  of  property,  application  for,  297. 
new  construction  or  extension,  application  for,  295. 
notes,  application  for  authorization  of  issue  of,  299. 


346  INDEX. 

[References  are  to  Pages.) 

EULES  OF  PRACTICE  AND  PROCEDURE  (Continued). 

railroad  crossings,  application  for  construction,  alteration  or  aboli- 
tion of,  293. 
safety  devices  at  railroad  crossings,  application  for,  294. 
6ale  of  property,  application  for,  297. 
secretary  to  furnish  information,  283. 
session  of  Commission,  283. 

statements,  application  for  extension  of  time  to  file,  305. 
stocks,  application  for  authorization  of  issue  of,  299. 
switch  connections  and  spurs,  complaint  for,  291. 
time  to  file  required  reports,  application  for  extension  of,  305. 
valuation  of  property  of  public  utilities,  292. 

RULES  TO  EXPEDITE  TRAFFIC, 
demurrage  charges,  193. 
power  of  Commission  to  provide,  192. 

SAFETY  DEVICES. 

power  of  Commission  to  order,  190. 

SALARIES. 

of  civil  executive  officers  of  Commission,  130. 

of  commissioners,  130. 

of  employees  of  Commission,  130. 

of  officers  of  Commission,  130. 

of  other  persons  and  employees  of  Commission,  130. 

SALE. 

by  sample,  subject  to  regulation  by  interstate  commerce  law,  103. 
of  property,  franchises,  etc.,  without  order  void,  201. 

SCALE. 

of  charge  on  profit  sharing,  147. 

SCHEDULE. 

of  sliding  scale  of  charge,  146. 

SCHEDULE  OF  RATES. 

carrier  shall  not  change,  140. 
contract  for  exchange  of  service,  144. 
exceptions  as  to  United  States,  epidemics,  etc.,  144. 
exceptions  may  be  established  by  Commission,  145. 
filing  of,  140. 

free  and  reduced  rates  by  express  companies,  143. 
free  passes  and  reductions  prohibited,  exceptions,  141. 
greater   or   less   charges   shall   not  be   demanded,   etc.,   rebates   pro- 
hibited, 144. 
passes  and  franks  by  telegraph,  etc.,  companies,  143. 
prior  contract  for  reduced  rates  not  affected,  143. 
publishing,  14  0. 
rebates  and  privileges  prohibited,  140. 


ENDEX.  347 

[Reffrencrs  are  to   Page*. J 

SECRETARY  TO  COMMISSION. 

appointment  and  term  of  oflice,  126 
duties  of,  126. 

SERVICE. 

to  be  fixed  by  Railroad  Commission,  178. 

SERVICE  OF  PUBLIC  UTILITIES. 

Commission  may  prescribe  fees  for  testing,  194. 
consumers  and  users  may  have  appliances  tested,  194. 
power  of  Commission  as  to,  193. 
power  of  Commission  to  enter  premises,  etc.,  194. 
right  to  be  present  at  test,  194. 

SERVICES  AND  FACILITIES, 
of  public  utilities,  134. 

SHIPPER. 

prohibited  from  false  billing,  149. 

SIGNATURE. 

to  complaints,  224. 

SINGLE  RATES.     See  Rates. 

SLIDING  SCALE  OF  CHARGE, 
schedule  of,  146. 

SOLICITORS. 

subject  to  regulation  by  interstate  commerce  law,  101. 

SPUR  CONNECTIONS, 
as  to  generally,  151. 

Commission  may  order  after  hearing,  187. 
corporation  or  person  entitled  to,  187. 
duty  to  construct,  152. 
duty  to  receive  and  deliver  freight,  152. 
interchange  switching  to  industrial  track,  188. 
primary  expenses,  division  of,  187. 

STATE. 

not  obligated  by  authorization  of  bond  issue,  209. 

STATE  TREASURY. 

fees  to  be  paid  into  by  Railroad  Commission  weekly,  222. 

STAY.     See  Review. 

granted  by  supreme  court  on  review  of  order.     See  Review. 

STIPULATION. 

of  question  in  uet'ou  to  revi<  w  ord<  r  of  Commission,  228. 


348  INDEX. 

[References  are  to  Pages. J 
STOCK. 

assignment  of  without  authorization  void,  202. 

holding  of  stock  heretofore  acquired  not  affected,  202. 

of  other  public  utilities,  not  to  be  purchased,  etc.,  without  authority 

of  Commission,  202. 
power  to  issue,  control  of,  203. 

STREET    RAILROAD    CORPORATION. 
definition   of,  116. 

STREET  RAILROADS.     See  Public  Utilities. 
definition  of,  114. 
fares  on,  153. 
transfers  on,  153. 

SUMMARY    PROCEEDINGS. 

to  prevent  violation  of  orders  of  Commission.     See  Injunction. 

SUPPLIES    OP   COMMISSION, 
as  to  generally,  129. 

SUPREME    COURT. 

extent   of   review  by,   236. 

jurisdiction   on   writ  of   review,   24'2. 

stay  by,  on  writ  of  review.     See  Review. 

SUSPENSION  OF  COMMISSION'S   ORDERS, 
none  pending  review,  243. 

SWITCHES. 

as   to  generally,   151. 

any    corporation   or    person   entitled    to,    187. 

construction    of   may   be    ordered,    187. 

duty   to   construct,   152. 

duty   to   receive  and   deliver   freight,   152. 

interchange  switching  to  industrial  track,  187. 

primary  expense  of  division  of,  187. 

TABULATION    OF   INFORMATION   AND    DETAILS. 

to   be  furnished  Commission,   153. 

TARIFF   SCHEDULE. 

change   in   schedule,   notice,   138,   139. 

Commission  may  allow  change  in  without  notice,  139. 

contents  of,   136. 

copies  how  kept  and  produced,  136. 

filing  and  publishing,  inspection  of,  135. 

form   of   to   be   prescribed   by    Commission,    137. 

how   printed,    136. 

increase  of  rates,  notice^   139.    . 


INDEX.  349 

[References  are  to  Pages.] 

TAEIFF  SCHEDULE    (Contim 

joint    rate    over    through    route,    135. 

limitation   of   rates,   etc.,    137. 

notice  in,  13G. 

posting,  136. 

power  of   Commission  to  approve  or  affix,   138. 

power  of  Commission  to  change   form  of  schedule  of  rates,  138. 

ehall  state  what,  135. 

who   to    file   with    Commission.    137 

TELEGRAPH    COMPANIES. 

governed    by    long    and    short    haul    sen-ices,    151. 
subject  to   regulation   by   interstate   commerce   law,   105. 

TELEGRAPH    CORPORATION, 
definition   of,    121. 

TELEGRAPH  LINE, 
definition  of,  121. 
duty  to  receive  and  transmit,  148. 

TELEPHONE  AND  TELEGRAPH  LINES. 
apportionment  of  expenses  of,  189. 
division   of   joint   rates    of,    189. 
franks  and  passes  by,  143. 

governed   by   long   and   short   haul   services,   151. 
physical   connections  of,   188. 
rules  and  regulations  of,  193. 

TELEPHONE  CORPORATION, 
definition  of,   121. 

TELEPHONE  LINE, 
definition  of,  120. 
duty   to   receive   and   transmit,   148. 

TERM  OF  OFFICE. 

cf   commissioners,   125. 

TESTIMONY. 

at    hearings,    2127. 

Railroad  Commission  Act  of,  87. 

TEXAS. 

constitutional   provisions    of,   50. 

corporation    control — Railroad,    50. 
private    corporations,    52. 

distribution  of  powers.    See  Distribution  of  Powers  or  Govern- 
ment. 

THROUGH  RATES.     See  Rates. 


350  INDEX. 

[References  are  to  Pages.] 
THROUGH  ROUTE. 

just    rates    over,    135. 

TIME   SCHEDULE. 

power  of  Commission  to  order  changes  in,  183. 

TOLLS. 

limitation  of,  137. 

TRACK    CONNECTIONS, 
expenses  of,  187. 
in  cities  and  towns,  186. 
power   of   Commission   to   order,   184. 

TRAFFIC. 

rules  to  expedite,  power  of  Commission  to  provide,  192. 

TRAINS. 

power  of   Commission  to   order  running,  etc.,   183. 

TRANSPORTATION. 

contract  for  not  affected,  170. 
free  to  be  prohibited,   170. 

TRANSPORTATION  FREE. 
of   commissioners,    131. 
of  employees  of  Commission,  131. 

TRANSPORTATION   OF  PERSONS, 
definition   of,    114. 

TRANSPORTATION  OF  PROPERTY, 
definition  of,  113. 

UNION  DEPOT. 

Commission  may  require  to  be  built,  183. 

UNITED    STATES. 

exceptions  as  to  rates  in  favor  of,  144. 

UNJUST    CHARGE, 
unlawful,  134. 

UTILITIES   INTER   SE. 

discrimination  between,   prohibited,   147. 

VACANCY  IN  COMMISSION, 
filling  of,  125. 
not   to  impair   powers   of,   129. 

VALUATION  OF  PROPERTY, 
by   Railroad   Commission,   195. 
revaluation  of,  195. 


INDEX.  331 

[Reference  »r«  to  Pages.) 


VESSEL. 

definition   of,   122. 


WAREHOUSEMAN, 
definition  of,   122. 

WASHINGTON. 

constitutional  provisions,  53. 
corporation  control,  54. 

distribution  of  powers.    See  Distribution  of  Powers  or  Govern- 
ment. 

WATER  SYSTEM, 
definition  of,  121. 

WATER   CORPORATION. 

definition   of,    122. 

WATER   RATES. 

fixing  of  by  Railroad  Commission,  171. 

WATERS. 

subject  to  regulation  by  interstate   commerce  law,  when,   105. 

WHARFINGER, 

definition    of,    122. 

WISCONSIN. 

constitutional   provisions  of,   56. 

distribution  of  power.     See  Distribution  of  lowers  of  Govern- 
ment. 
Railroad  Commission  Act  of,  89. 

WITNESSES.     See   Hearings  Before  Commission. 

court    may   compel   attendance   with   books   and    papers,   216. 
deposition  of  may  be  taken  when,  218. 
failure    to    appear,    remedy    provided    cumulative,    218. 
failure  to  obey  court's  order  to  appear,  contempt,  217. 
fees  and  mileage  of: 

by  whom   paid,   215. 

demanded,  not  paid,  witness  need  not  attend,  216. 

may  be  collected  by  suit,  216. 

may    demand,    exceptions,    216. 

mileage  not  to  be  received  where  traveling  on  free  transporta- 
tion,   216. 

subpoenaed   by    Commission,    by   whom   paid,    215. 
may   be   required   to   produce   documents   and   papers,    215. 
no    person    excused    from    testifying    as,    219. 
order   of   court   that  witness   appear,   sen-ice   and   effect   of   failure 

to  obey,  217,  218. 
person  testifying  falsely  not  exempt   from  perjury,  219. 
person   testifying   not   to   be   prosecuted,   219. 
refusal   to  attend  and  proceedings  on,   217. 


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